/raid1/www/Hosts/bankrupt/CAR_Public/080128.mbx
C L A S S A C T I O N R E P O R T E R
Monday, January 28, 2008, Vol. 10, No. 19
Headlines
BEAZER HOMES: Ga. Court Consolidates ERISA Violations Suit
BRIAN SMITH: Recalls Serene Float Tanks for Electrocution Hazard
BUSINESS COMPUTER: Sued for Fraudulently Collecting Govt. Aid
CHRISTMAS TREE: Recalls Wooden Toys on Paint's High Lead Level
DANNON COMPANY: Refutes False Health Benefits Claims Lawsuit
DELL INC: Amended Complaint Filed in Tex. ERISA Violation Suit
DOMINION HOMES: Ohio Appellate Court Upholds Ruling in “Rece”
DOW CHEMICAL: Court of Appeals Keeps Class Status of Dioxin Suit
DRUG COS: Suit Filed in Fla. Court Over Vytorin, Zetia Marketing
GENERAL ELECTRIC: $500M Gender Bias Suit Granted Go Signal
GENERAL ELECTRIC: Faces Suit in Ky. Over 2007 Train Derailment
HARRY AND DAVID: Recalls Cashew Boxes Containing Mixed Nuts
HARTFORD FINANCIAL: Conn. Court Refuses to Dismiss ERISA Suit
KLA-TENCOR CORP: Calif. Securities Fraud Suit Settled for $65 MM
KVH INDUSTRIES: Court Grants Final Approval to $5.3 Settlement
INSURANCE BROKERAGE: N.J. Court Grants Summary Judgment Motion
LAND TITLE: Settles Suit Over Real Estate Transaction Fees
MASSACHUSETTS: Town of Milford Faces Lawsuit Over Rental Bylaw
MERRILL LYNCH: Faces ERISA Violations Lawsuit in N.Y. Court
MIVA INC: Settles Click Fraud Suit “Lance's Gifts v. Yahoo!”
MIVA INC: Click Fraud Suit by Payday Advance in N.Y. Dismissed
MIVA INC: Settles “Cisneros” Suit Over Online Gambling Ads
NEW JERSEY: Mercer County Working to Settle Strip-Search Lawsuit
PLANET TOYS: Faces Suit Over Asbestos in CSI Field Kit Toys
RAJA FOODS: Recalls Food Packages Containing High Lead Levels
SMITH & WOLLENSKY: Faces N.Y. Suit Alleging FLSA Violations
STATE STREET: Amended Complaints Filed in N.Y. ERISA Lawsuit
SUNWEST MANAGEMENT: Settles Cal., Ore Elder Care Suits for $5M
UNIVERSITY OF CALIFORNIA: Court Denies Review of $34M Award
WASHINGTON MUTUAL: Faces ERISA Violations Lawsuit in Wash.
New Securities Fraud Cases
LEVITT CORP: Coughlin Stoia Files Securities Fraud Suit in Fla.
PANERA BREAD: Coughlin Stoia Files Securities Fraud Suit in Mo.
*********
BEAZER HOMES: Ga. Court Consolidates ERISA Violations Suit
----------------------------------------------------------
The U.S. District Court for the Northern District of Georgia has
consolidated the Employee Retirement Income Security Act
lawsuits:
-- "Miller v. Beazer Homes USA, Inc., Case No. 1:07-cv-
952,” filed April 30, 2007;
-- "Willet v. Beazer Homes USA Inc., Case No. 1:07-cv-
1079,” filed May 11, 2007;
-- De Stefano v. Beazer Homes USA, Inc., Case No. 1:07-CV-
1098,” filed May 14, 2007;
-- “Denning v. Beazer Homes USA, Inc., Case No. 1:07-CV-
1401,” filed June 15, 2007;
under “In re: Beazer Homes USA, Inc. ERISA Litigation, Master
File No. 1:07-CV-00952-RWS."
The Court appointed Keller Rohrback LLP and Shiffrin Barroway
Topaz & Kessler LLP as Interim Co-Lead Counsel and Holzer,
Holzer & Fistel LLC as Interim Liaison Counsel for Plaintiffs in
the Consolidated Action.
Patrick Denning and Lorene De Stefano were appointed Interim
Lead Plaintiffs.
The “Denning v. Beazer Homes, USA, Inc., et al.” ERISA Complaint
was filed in the U.S. District Court Northern District of
Georgia on behalf of Plaintiffs and a class of all persons who
were participants in or beneficiaries of the Beazer Homes USA,
Inc. 401(k) Plan, between July 28, 2005 and May 30, 2007
and whose accounts included investments in Beazer Homes common
stock.
The suit is docketed 1:07-cv-01401-JTC. It was filed June 15,
2007 by Patrick Denning, who worked for Beazer from April 1997
through the present.
Plaintiffs allege that during the Class Period, the Defendants
breached their fiduciary duties to Plaintiffs and the Class
members by:
-- failing to prudently and loyally manage the Plan’s
assets;
-- failing to monitor fiduciaries;
-- failing to provide complete and accurate information to
the class; and
-- co-fiduciary liability.
It asks, among others, for a declaration that the defendants
breached their fiduciary duties to participants, an order
compelling the defendants to make good to the plan all losses to
the plan resulting from the breaches, and actual damages.
It names as defendants Beazer Homes USA, Inc., and directors
Laurent Alpert, Katie J. Bayne, Brian C. Beazer, Peter G.
Leemputte, Ian J. McCarthy, Larry T. Solari, Stephen P. Zelnak,
Jr., and John and Jane Does 1-10.
Representing the plaintiff are:
Michaeal I. Fistel, Jr., Esq.
Corey D. Holzer
1117 Perimeter Center West, Suite E-107
Atlanta GA 30338
Phone: (770) 392 0090
Fax: (770) 392 0029
E-mail: mfistel@holzerlaw.com
Lynn Lincoln Sarko
Isarko@kellerrohrback.com
Derek W. Loeser
E-mail: dloeser@kellerohrback.com
Gary A. Gotto
E-mail: ggotto@kellerohrback.com
Cari Campen Laufenberg
E-mail: claufenberg@kellerohrback.com
Keller Rohrback LLP
1201 Third Avenue, Suite 3200
Seattle WA 98101 3052
Phone: (206) 623 1900
Fax: (206) 623 3384
BRIAN SMITH: Recalls Serene Float Tanks for Electrocution Hazard
----------------------------------------------------------------
Brian Smith, dba Serene Float Tanks, of Lakewood, Calif., in
cooperation with the U.S. Consumer Product Safety Commission, is
recalling about 5 Serene Float Tanks.
The company said the electrical components in the float tank are
not grounded, which can prevent the Ground Fault Circuit
Interrupter (GFCI) from tripping when needed, posing an
electrocution hazard to consumers. No injuries have been
reported.
This recall involves Serene Float Tanks, a water tank that is
light- and soundproof, temperature insulated and ventilated. The
heated tanks are filled with water and a dissolvent that allows
a person to float effortlessly.
These recalled float tanks were manufactured in the United
States and were being sold by the Serene Float Tanks Web site
between August 2007 and October 2007 for about $6,000.
Pictures of the recalled float tanks:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08540b.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08540a.jpg
Consumers are advised to immediately stop using the recalled
float tanks and contact Brian Smith for a refund.
For additional information, For additional information, contact
Brian Smith collect at (714) 483-8084 between 9 a.m. and 9 p.m.
PT Monday through Friday, or email: quickstart74@yahoo.com
BUSINESS COMPUTER: Sued for Fraudulently Collecting Govt. Aid
-------------------------------------------------------------
The Business Computer Training Institute, Inc. d/b/a Business
Career Training Institute, Inc. is facing a class-action
complaint filed Jan. 3 in the Superior Court of the State of
Washington for Pierce County.
Plaintiffs claim BCTI recruited the homeless, the brain-damaged,
people outside welfare offices, and willing students, taught
them "no marketable skills," burdened them with debt, lied about
its former "students'" success, and "graduated" them whether
they showed up or not, while BCTI collected government aid for
the fraud.
Students are also suing BCTI owner-directors Morrie and Linda
Pigott and Tom and Faye Jonez.
This suit is brought as a class action with respect to
plaintiffs' claims against defendants arising out of the
institutional neglect and conduct, in violation of the contracts
held with each student, common law negligent misrepresentation,
negligent infliction of emotional distress, common law
negligence law, and Washington's Protection Act.
They bring this suit on behalf of all persons who have been
enrolled in BCTU at any BCTI campus, whether now opened or
closed, in Oregon.
Plaintiffs pray for the following relief:
-- for individual and class damages in amounts to be proven
at trial;
-- for class certification;
-- for injunctive and declaratory relief;
-- for treble damages;
-- for costs and attorneys' fees; and
-- for such other and further relief as the court deems
just and proper.
The suit is "Amanda M. Hawley et al. v. Business Computer
Training Institute, Inc. d/b/a Business Career Training
Institute, Inc., Case No. 08 2 04093 9," filed in the Superior
Court of the State of Washington for Pierce County.
Representing plaintiffs are:
Darrell L. Cochran
James W. Beck
Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim
LLP
1201 Pacific Ave., Suite 2100
Post Office Box 1157
Tacoma, Washington 95401-1157
Phone: (253) 620-8500
Fax: (253) 620-6565
E-mail: dcochran@gth-law.com or jbeck@gth-law.com
CHRISTMAS TREE: Recalls Wooden Toys on Paint's High Lead Level
--------------------------------------------------------------
Christmas Tree Shops, of South Yarmouth, Mass., in cooperation
with the U.S. Consumer Product Safety Commission, is recalling
about 15,000 Big Wooden Blocks and Jumbo Wooden Train Sets.
The company said the surface paint on some pieces of the toys
contains excessive levels of lead, violating the federal lead
paint standard. No injuries have been reported.
The Big Wooden Blocks contain 30 or 60 colorful block pieces in
11 geometric shapes. The Jumbo Wooden Train Sets contain 70
wooden pieces including trees, stop and railroad crossing signs,
a red wooden engine and green train cars. The following style
numbers and UPC numbers are printed on the packaging of the
toys:
Toy Description Style # UPC #
Big Wooden Learning Blocks 30 pieces 7210 14559211
Big Wooden Learning Blocks 60 pieces 7211 14559235
70 piece Jumbo Wooden Train Sets 13275A 14217340
These recalled wooden toys were manufactured by First Learning
Company Ltd., of Hong Kong and were being sold at Christmas Tree
Shops located in the Northeast and Mid-Atlantic regions from
October 2006 through November 2007 for between $4 and $20.
Pictures of recalled wooden toys:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08174a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08174b.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08174c.jpg
Consumers are advised to immediately take the recalled toys away
from children and return the toys to any Christmas Tree Shop to
receive a refund.
For additional information, contact Christmas Tree Shops at
(888) 287-3232 between 9 a.m. and 4 p.m. ET Monday through
Friday, or visit the firm's Web site:
http://www.christmastreeshops.com
DANNON COMPANY: Refutes False Health Benefits Claims Lawsuit
------------------------------------------------------------
The Dannon Company, Inc. responded to a class-action lawsuit
filed in the Central District of California Alleging Misleading
Claims.
The complaint revealed that while spending more than $100
million to falsely claim that Activia and DanActive have
"clinically" and "scientifically" "proven" health benefits not
available in other yogurts, Dannon's own studies flatly
disproved the Company's deceptive boasts (Class Action Reporter,
Jan. 25, 2008).
According to a company statement, “Dannon is aware of the
lawsuit and we are reviewing it. Dannon proudly stands by the
claims of its products and the clinical studies which support
them. All of Dannon’ s claims for Activia and DanActive are
completely supported by peer-reviewed science and are in
accordance with all laws and regulations. Dannon’ s advertising
has always been and will continue to be absolutely truthful, and
Dannon will vigorously challenge this lawsuit.”
“Dannon strongly disagrees with the allegations in the lawsuit.
The filed complaint does not contain any support for the broad
generalizations made in the lawsuit. The one publication cited
in the lawsuit does not disprove Dannon’ s scientific
substantiation for its proven product benefits. Indeed, the
report cited in the lawsuit, published by the American Academy
of Microbiology, does not even reference any Dannon products.”
“Dannon makes all scientific studies about its products
available to the public following the established method of
peer-review and publication. Dannon regularly consults with
leading independent experts in the field of probiotics about the
science behind all of its probiotic claims.”
“The scientifically substantiated benefits of Dannon’ s products
are confirmed not only by the scientific journals that have
reviewed and published the findings – which are made available
on the company’ s web sites for any and all to read – but also
by the millions of highly satisfied consumers who enjoy Dannon’s
products,” the statement continued.
For a more detailed scientific summary about Dannon products and
the scientific evidence to support claims, please visit
http://www.activia.comand http://www.danactive.com
The Dannon Company is America’ s founding national yogurt
company and continually leverages its expertise to develop and
market innovative cultured fresh dairy products in the United
States. The company produces and sells approximately 100
different types of flavors, styles and sizes of cultured fresh
dairy products.
Dannon is owned by Groupe Danone, one of the world’ s leading
producers of packaged foods and beverages, and Dannon is the
top-selling brand of yogurt products worldwide, sold under the
names Dannon and Danone.
Consistent with its long-standing traditions, Dannon is
committed to providing to high-quality, wholesome, nutritious
and innovative products.
DELL INC: Amended Complaint Filed in Tex. ERISA Violation Suit
--------------------------------------------------------------
A second amended complaint was filed Nov. 29, 2007 in the suit,
"In Re Dell, Inc. ERISA Litigation, Case No. 06-CA-758-SS"
pending in the U.S. District Court for the Western District of
Texas, Austin Division.
In the suit, plaintiffs David Norman, Gerald S. Lee, Andre Bowen
and Enrique Rangel, Jr. allege that based upon the investigation
of plaintiff's counsel, that substantial additional evidentiary
support will exist for the allegations in the suit after a
reasonable opportunity for discovery.
This is a class action brought on behalf of the Dell, Inc.
401(k) Plan (formerly Dell Computer Corp. 401(k) Plan) and of
the Employee Retirement Income Security Act and against the
fiduciaries of the Plan for violations of ERISA.
Plaintiffs claims arise from the failure of defendants, who are
fiduciaries of teh Plan, to act solely in the interest of the
participants and beneficiaries of the Plan, and to exercise the
required skill, care, prudence and diligence in administering
the Plan and the Plan's assets during the period May 16, 2002 to
the present.
Plaintiffs allege that Defendants allowed the heavy, imprudent
investment of the Plan's assets in the Dell, Inc. Stock Fund.
They raise these causes of action:
(1) Failure to prudently and loyally manage the plan and the
assets of the plan,
(2) failure to provide complete and accurate information to
participants and beneficiaries,
(3) failure to monitor fiduciaries,
(4) co-fiduciary liability
The proposed class are all persons, other than defendants, who
were participants in or beneficiaries of the lan at any time
between Feb. 13, 2003 and the present, and whose accounts
included investments in Dell stock
The plaintiffs are seeking for, among others, an order
compelling defendants to pay plaintiffs for losses, an
imposition of a constructive trust on any amounts by which
defendants was unjustly enriched at the expense of the Plan, an
order requiring defendants to appoint one or more independent
fiduciaries to participate in the management of the Plan's
investment in Dell stock, and actual damages.
For more information, contact the liaison counsel for the
Consolidated ERISA Action:
Thomas H. Watkins, Esq.
Albert Carrion Jr., Esq.
Brown McCarroll LLP
100111 Congress Ave., Suite 1400
Austin, Texas 78701
Phone: (512) 472 5456
Fax: (512) 480 5033
the co-lead counsel for the consolidated ERISA Action:
Lynn L. Sarko, Esq.
Derek W. Loeser, Esq.
Erin M. Riley, Esq.
Raymond J. Farrow, Esq.
Keller Rohrback LLP
1201 Third Avenue, Suite 3200
Seattle, Washington 98101 3052
Phone: (206) 623 1900
Fax: (206) 623 3384
Robert A. Izard, Esq.
Mark P. Kindall, Esq.
20 Church St., Suite 1700
Hartford, CT 06103
Phone: 860-493 6292
Fax: 860 493 6290
DOMINION HOMES: Ohio Appellate Court Upholds Ruling in “Rece”
-------------------------------------------------------------
The 10th District Court of Appeals in Franklin County, Ohio
upheld a lower court ruling in the matter, “Rece, et al. v.
Dominion Homes, Inc., et al., Case No. 06CVH202335,” a purported
class action alleging lending fraud, Bizjournals.com reports.
The suit was filed on Feb. 21, 2006 against DHFS, Dominion
Homes, Inc. (DHI), named and unnamed appraisers who have worked
with DHI, and unnamed charitable organizations that have
provided the DHI’s customers with down payment assistance funds
in the last several years.
Plaintiffs purport to bring the claim on behalf of purchasers of
the Company’s homes from 1999 to the present who received such
funds and allege, among other things, that the defendants
misrepresented the value of the plaintiffs’ homes and obtained
an improper benefit by artificially inflating the sales price of
homes to purchasers receiving down payment assistance funds.
The complaint also alleges that the defendants engaged in
predatory lending practices against the plaintiffs and other
consumers by extending them credit without regard to the actual
value of their homes, knowing that the result would be higher
default and foreclosure rates in its communities.
The complaint seeks injunctive or declaratory relief,
compensatory damages, punitive damages and attorneys’ fees and
costs.
On May 2, 2006, the Company and DHFS filed a motion for judgment
on the pleadings with respect to plaintiffs’ claim for breach of
the Ohio Consumer Sales Practices Act (OCSPA) on the grounds
that this claim was barred by the two-year applicable statute of
limitations.
On June 12, 2006, the Court granted this motion with respect to
plaintiffs’ claims for money damages under the OCSPA, but denied
the motion with respect to plaintiffs’ claim for rescission
under the OCSPA.
On July 28, 2006, the Company and DHFS filed a motion for
summary judgment as to plaintiffs’ predatory lending claims
under statutory and common law.
On Oct. 4, 2006, the Court granted this motion. On Dec. 1,
2006, Defendant Valuation Resources, Inc., the valuation company
that provided appraisals of the plaintiffs’ homes for the
Company, filed a motion for summary judgment with respect to
plaintiffs’ claims for fraud, misrepresentation, conspiracy, and
OCSPA.
On Dec. 28, 2006, the Court granted the Company’s and DHFS’s
motions for summary judgment regarding plaintiff’s individual
claims and class allegations relating to the OCSPA.
On Feb. 7, 2007, the Court granted Valuation Resources’ motion
in its entirety. The plaintiffs appealed this decision on April
10, 2007.
On March 28, 2007, the plaintiffs filed a notice of voluntary
dismissal with respect to all remaining claims against the
defendants with the right to refile.
Later on, plaintiffs appealed the summary judgment rulings to
Franklin County Court of Appeals, which reached the recent
decision.
The homeowners have until Feb. 22, 2007 to appeal to the Ohio
Supreme Court.
Asked for comment on the recent decision, Edwin J. Hollern, the
plaintiffs' attorney with the Westerville law firm Hollern &
Associates said, “We'll make a decision shortly on the filing.”
For more details, contact:
Edwin J. Hollern, Esq.
Hollern & Associates
Phone: (614) 839-5700
Fax: (614) 839-4200
E-mail: ehollern@ejhlaw.com
Web site: http://www.ejhlaw.com/
DOW CHEMICAL: Court of Appeals Keeps Class Status of Dioxin Suit
----------------------------------------------------------------
The Michigan Court of Appeals upheld, in a divided opinion,
class-action status for a suit filed against Dow Chemical Co.
over dioxin contamination in the Tittabawassee River basin,
reports say.
Freeland couple Gary and Kathy Henry filed the suit in Saginaw
County Circuit Court seeking recovery of the value of their home
and property, which they believe has been made worthless by
dioxin contamination. The couple soon was joined by hundreds of
others who signed the suit.
In October 2005, Saginaw Circuit Judge Leopold Borrello
certified the class. He said that without joining all residents
in one class in one suit, courts would be clogged by individual
lawsuits.
But Dow asked the Michigan Court of Appeals to reverse the
ruling of Judge Borrello saying that residents claiming property
damage because of historic dioxin releases from Dow Chemical Co.
should be handled separately -- that each has its own issues
with which to contend (Class Action Reporter, Nov. 17, 2005).
Dow argued that each plaintiff should present and prove his or
her case separately because each is contaminated with varied
levels of dioxin, if at all, and therefore the impact on
property value and the impact on property owners' use varies.
In a ruling dated Jan. 24. Justice Karen M. Fort Hood wrote that
the previous Circuit Court ruling did not err in allowing
plaintiffs' class-action status.
Justice Patrick M. Meter wrote that a class action is
appropriate in regard to liability but that individual
proceedings are best to determine damages.
Justice Kirsten Frank Kelly dissented, noting some plaintiffs
had no dioxin contamination on their properties.
The class-action participants would include people who owned
property as of Feb. 1, 2002, in the 100-year flood plain
downstream from Dow's Midland plant, court records show.
The covered area generally is bounded on the west and south by
River and Stroebel, and the east and north by Midland, St.
Andrews and Michigan, documents said.
DRUG COS: Suit Filed in Fla. Court Over Vytorin, Zetia Marketing
----------------------------------------------------------------
Howard and Associates, P.A. and Wilner Block, P.A. filed a
lawsuit against Merck & Company Inc. and Schering-Plough
Corporation, manufacturers of Vytorin and Zetia.
The lawsuit was filed on January 18, 2008, in United States
District Court, Middle District of Florida, Jacksonville
Division, alleging violations of state consumer protection
statutes, breach of warranty, and unjust enrichment.
The lawsuit seeks punitive damages from Merck and Schering-
Plough for their marketing and sale of Vytorin and Zetia.
The lead plaintiff in the lawsuit, which seeks class action
status, is Marion J. Greene, a 72-year old grandmother of three
who purchased Zetia and was reimbursed through federal Medicare
and Veterans Administration drug programs.
"I was shocked to see that I was using a drug costing three
times what a generic would, with no additional benefits," said
Mrs. Greene. "I feel I've been intentionally misled by companies
whose main pursuit is profits, rather than health."
Published reports indicate combined revenues of more than $5
billion from sales of Vytorin and Zetia. Most drug costs are
paid for through public health programs such as Medicare and
Medicaid, or through private insurance. Under state and federal
consumer protection laws, both Merck and Schering-Plough would
have to refund overpayments, since generic statin drugs can be
obtained for approximately 1/3 of the cost of the brand name
drugs. Both companies would also face punitive damages.
Schering-Plough Corporation manufactures, markets, and/or sells
the prescription drug Zetia. Zetia is a cholesterol-lowering
drug, which acts by diminishing the absorption of cholesterol
through the intestines.
Merck Corporation, Inc. manufactures, markets and/or sells the
prescription drug Vytorin which is Merck's brand-name composite
drug consisting of a proprietary combination of Zetia and Zocor.
The drug Zocor is a statin, which reduces low-density
lipoprotein (LDL) cholesterol and total cholesterol in the
blood.
According to the complaint, on January 14, 2008, "possibly
prompted by Congressional inquiry," Merck and Schering-Plough
released a study from April, 2006, that found Vytorin provided
no significant benefit in slowing the clogging of arteries
versus generic statin drugs -- in fact, some patients showed an
increase in triglycerides when compared to those using generic
statin drugs alone. Publication of the study was withheld for
almost two years. In the meantime, Vytorin had been marketed as
"the only drug that helps: Block the absorption of cholesterol
that comes from food," and "Reduces the cholesterol your body
makes naturally," with the result of "less bad cholesterol . . .
in your bloodstream."
Indeed...Merck and Schering-Plough placed advertisements in
major newspapers stating they "proudly stand behind the
established efficacy and safety profile of Zetia and Vytorin."
Boston Professor Tim Howard J.D, Ph.D, Director of the Doctorate
Program in Law & Policy at Northeastern University, founding
partner of Howard & Associates, P.A., a leading law firm based
in Tallahassee, Florida, and co- counsel in the case, said:
"It's not just patients who are being ripped off by fraudulent
marketing claims. It's health systems, insurance companies,
Medicare and Medicaid, and -- ultimately -- the U.S. taxpayer."
Dr. Howard is joined on the case by Richard A. Daynard,
Professor of Law at Northeastern University, along with Wilner
Block, P.A., a leading law firm based in Jacksonville, Florida.
Pr. Daynard said: "This is just another example of why
healthcare costs have skyrocketed in the United States. If you
want to talk about reforming our nation's healthcare system,
this would be a good place to start."
Norwood "Woody" Wilner, founding partner at Wilner Block said:
"Merck and Schering-Plough's response has been to assure the
public that Zetia and Vytorin are safe and effective. But that's
not the point. Millions of patients have been sold a drug that
these companies' own studies show doesn't do what it was
marketed and advertised to do. And both companies have known
about their study results for almost two years."
"That," Mr. Wilner added, "is the definition of 'consumer
fraud'."
For more information, contact:
Howard and Associates, PA
3300 Henderson Blvd. #202
Tampa, Florida 33609 USA.
Phone: (813) 872-8881
- and -
Wilner Block, P.A.
3127 Atlantic Blvd., Suite 3
Jacksonville, FL 32207
Phone: (904) 475-9400
Facsimile: (904) 475-9411
GENERAL ELECTRIC: $500M Gender Bias Suit Granted Go Signal
----------------------------------------------------------
Judge Peter Dorsey of the U.S. District Court for the District
of Connecticut rejected a motion filed by General Electric Co.
to prevent Lorene Schaefer's lawsuit from achieving class-action
status, AP WorldStream reports.
Ms. Schaefer, general counsel of GE Transportation in Erie,
Pennsylvania filed the suit in May 2007 accusing officials of
giving unfair preference to men in promotions to top-paying
legal jobs. She decided to file the lawsuit after learning in
April that she was to be demoted from her job as GE
Transportation's top legal officer.
She was placed on paid administrative leave in May after
complaining about the pending demotion.
The lawsuit, which seeks an injunction to halt GE's pay and
promotion policies and practices, names Chairman and Chief
Executive Jeff Immelt and numerous other executives.
Among its claims, GE argued that Ms. Schaefer cannot lead a
class-action lawsuit because she had access to confidential
client information while employed with GE.
But Judge Dorsey rejected that argument for now, ruling that the
high-ranking attorney for GE can go ahead with her class action.
"If at any point during discovery, the defendants learn and can
demonstrate that plaintiff is inappropriately using confidential
client confidences in asserting her claims or representing the
class, the court may reconsider the propriety of plaintiff's
class allegations at that time," Judge Dorsey wrote in his 30-
page ruling.
In a statement, Ms. Schaefer said the ruling would benefit
hundreds of GE employees.
Headquartered in Fairfield, Conn., General Electric Capital
Services Inc. provides financial products and services
worldwide.
GENERAL ELECTRIC: Faces Suit in Ky. Over 2007 Train Derailment
--------------------------------------------------------------
General Electric Capital Services, Inc., General Electric
Railcar Services Corp., and Genesee & Wyoming Inc. face a
purported class action in the U.S. District Court for the
Western District of Kentucky over a 2007 train derailment in
Bullitt County.
The suit arises out of a rail car derailment, explosion,
chemical fire, and chemical release beginning on Jan. 16, 2007,
in or about the towns of Brooks and Shepherdsville in Bullitt
County, Kentucky. It is seeking class-action status, and thus
is considered to be the second case to seek such a distinction.
The first suit to seek class-action status over the incident is
captioned, "Green et al. v. CSX Corporation et al., Case No.
3:07-cv-00024-CRS," which was also filed in the U.S. District
Court for the Western District of Kentucky. It was filed
against CSX Corp., the company that owns the tracks and operated
the train.
In that case, plaintiffs allege that defendants, on their own
accord and through their agents, servants and employees, caused
a massive rail car derailment, explosion, fire, and chemical
release into nearby communities (Class Action Reporter, Jan. 22,
2007).
The new suit is entitled, Green et al v. General Electric
Capital Services, Inc. et al., Case No. 3:08-cv-00042-CRS, and
was filed on Jan. 15, 2008 in the same court.
In general all the lawsuits allege that because of negligence,
CSX Corp. was responsible for the Jan. 16, 2007, crash off Huber
Station Road and that the company did not warn residents of
possible danger quickly enough afterward.
During the incident, about 500 residents were evacuated, some
people were taken to hospitals, and thick, black smoke spread
for miles. The train was carrying chemicals that are considered
hazardous.
According to the lawsuits, the derailment led to physical
injury, emotional trauma and property damage for more than 30
plaintiffs.
In the new suit General Electric Capital Services Inc., General
Electric Railcar Services Corp., and Genesee & Wyoming Inc. were
added as defendants. The suit alleges that the three companies
shared in the ownership of one of the cars that derailed.
That suit involves about 23 plaintiffs. It asks that the court
to create a class definition that would include any individual
or business harmed by the derailment, according to John
Spainhour, a Shepherdsville-based attorney whose firm is one of
six tied to the purported class action.
Mr. Spainhour explains that in the end, the class definition his
clients want would enable residents to file claims even if they
weren't specifically named in the suit as plaintiffs.
The suit is Green et al v. General Electric Capital Services,
Inc. et al., Case No. 3:08-cv-00042-CRS, filed in the U.S.
District Court for the Western District of Kentucky under Judge
Charles R. Simpson, III.
Representing the plaintiffs are:
Lee L. Coleman, Esq.
Hughes & Coleman
P.O. Box 10120
Bowling Green, KY 42102
Phone: 270-782-6003
Fax: 270-782-8820
E-mail: lcoleman@hughesandcoleman.com
- and -
John E. Spainhour, Esq.
Givhan & Spainhour, PSC
200 S. Buckman Street, Suite One
Shepherdsville, KY 40165
Phone: 502-543-2218
Fax: 502-955-7000
E-mail: jspainhour@alltel.net
HARRY AND DAVID: Recalls Cashew Boxes Containing Mixed Nuts
-----------------------------------------------------------
Harry and David, of Medford, Oregon, is voluntarily recalling
approximately 2130 boxes of 4 oz. Harry & David Giant Cashews
because they may contain mixed nuts, including peanuts, almonds,
pecans and Brazil nuts not declared on the ingredient statement.
People who have an allergy or severe sensitivity to these
ingredients (peanuts, almonds, pecans and/or Brazil nuts) run
the risk of serious or life-threatening allergic reaction if
they consume these products.
The affected product was distributed throughout the United
States only through Harry and David Stores beginning 11/16/07.
Harry and David is recalling all 4 oz. boxes of Giant Cashews
with lot codes 2507 MSL 15:00 through 2507 MSL 18:00 and a use
by date of 6/28/08. The lot code and use by date are ink jetted
on the bottom of the box. Affected boxes also can be recognized
by the price sticker on the bottom, or lower portion of the
back, of the box. The price sticker states "Nuts Mixed Nuts Box
4oz". These products are packaged in 4 oz. paperboard boxes with
bags of metalized film containing nuts inside. The boxes are
olive green with a pale green design in the background.
There have been no illnesses or injuries reported to date.
Anyone concerned about an illness/injury should contact a
physician immediately.
This problem occurred during a product changeover when packaging
for cashews was comingled with packaging for the mixed nuts.
Consumers with product may return it to the any Harry and David
retail store for a full refund. Consumers with questions about
the recalled product may phone the Harry and David Customer
Service division at 800-233-1101, 24 hours a day.
HARTFORD FINANCIAL: Conn. Court Refuses to Dismiss ERISA Suit
-------------------------------------------------------------
Shepherd, Finkelman, Miller & Shah announced that, on October
23, 2007, Defendants’ Motions to Dismiss were denied in the
action captioned:
“Phones Plus, Inc. v. The Hartford Financial Services
Group, Inc., Hartford Life Insurance Company
(collectively, The Hartford) and Neuberger Berman
Management, Inc. (Civil Action No. 3:06CV01835 (AVC)).”
The opinion was authored by the Honorable Alfred V. Covello of
the United States District Court for the District of
Connecticut.
The case was brought by Plaintiff, Phones Plus, Inc. ,
individually, and on behalf of all similarly situated persons
and entities, under the Employee Retirement Income Security Act,
29 U.S.C. SS1001 et seq., for Defendants’ alleged breaches of
fiduciary duties, prohibited transaction rules and other
provisions of ERISA, including dealing with the assets of
Plaintiff’s 401K retirement plan in The Hartford’s own interest
and contrary to the interests of the Plan.
Both Defendants The Hartford and Neuberger moved to dismiss
Plaintiff’s Amended Complaint for a purported failure to state a
claim upon which relief could be granted. In opposition, Phones
Plus argued that it sufficiently alleged violations of ERISA by
The Hartford and Neuberger and that The Hartford Financial
Services Group, Inc. (HFSG) had direct liability as a fiduciary
of the Plan, or, in the alternative, was jointly and severally
liable to the Plan as a co-fiduciary for Hartford Life Insurance
Company’s breaches of fiduciary duty; and that, to the extent
that any of the Defendants were not deemed fiduciaries or co-
fiduciaries under ERISA, each of the Defendants were liable to
the Class as non-fiduciaries that knowingly participated in a
breach of trust.
The Court rejected The Hartford’s argument that it was not a
fiduciary of the Plan under ERISA. Instead, the Court upheld
Counts I and II of Plaintiff’s Amended Complaint and found that
Phones Plus had specifically alleged that each of the Defendants
is a fiduciary of the Plan and had alleged sufficient facts to
support claims under ERISA.
The Court also upheld Count III of Plaintiff’s Amended Complaint
and found that Plaintiff’s allegations were sufficient to
support a claim for relief for a non-fiduciary’s knowing
participation in a breach of trust by an ERISA fiduciary.
Further, the Court found that Phones Plus sufficiently alleged a
breach of fiduciary duty by Neuberger and that The Hartford
knowingly participated in Neuberger’s breach, and that damages
resulted from this conduct. The Court also found that the
allegations in Plaintiff’s Amended Complaint were sufficient to
raise claims for relief against HFSG, which The Hartford
Defendants had argued was a holding company that was not a party
to any contract with Plaintiff.
Finally, the Court denied Neuberger’s Motion to Dismiss, thereby
rejecting Neuberger’s argument that it was not a proper party to
the action. The Court concluded that Phones Plus sufficiently
alleged that Neuberger is an ERISA fiduciary with respect to the
conduct alleged in Phones Plus’ Amended Complaint.
The suit is "Phones Plus, Inc. v. Hartford Fin Svc Inc., et al.,
Case No. 3:06-cv-01835-AVC," filed in the U.S. District Court
for the District Court of Connecticut under Judge Alfred V.
Covello.
Representing the plaintiffs is:
James E. Miller, Esq.
Sheperd Finkelman Miller & Shah-Chester
65 Main St., Chester, CT 06412
Phone: 860-526-1100
Fax: 860-526-1120
E-mail: jmiller@sfmslaw.com
Web site: http://www.sfmslaw.com/
KLA-TENCOR CORP: Calif. Securities Fraud Suit Settled for $65 MM
----------------------------------------------------------------
KLA-Tencor Corporation has agreed in principle to pay $65
million to settle a consolidated securities fraud class action
filed in the U.S. District Court for the Northern District of
California.
Initially, the company was named as a defendant in a putative
securities class action filed on June 29, 2006 in the U.S.
District Court for the Northern District of California.
Two similar actions were filed later in the same court, and all
three cases have been consolidated into one action, under the
caption "In re KLA-Tencor Corp. Securities Litigation, No. C06-
04065."
The consolidated complaint alleges claims under the U.S.
Securities Exchange Act of 1934 as a result of the Company's
past stock option grants and related accounting and reporting,
and seeks unspecified monetary damages and other relief.
The complaints allege that the Company backdated stock option
grants to the individual defendants and/or other directors or
executives to provide the recipients with a more profitable
exercise price.
In particular, the complaint says that:
(a) contrary to statements made by the Company, the option
grants were not made at the fair market value or the
NASDAQ closing price on the date of the grant;
(b) KLA-Tencor improperly understated its expenses and
overstated its earnings as a result of improper option
backdating; and
(c) KLA-Tencor failed to prepare its financial statements
in accordance with Generally Accepted Accounting
Principles.
The plaintiffs seek to represent a class consisting of
purchasers of KLA-Tencor stock between June 30, 2001 and May 22,
2006 who allegedly suffered losses as a result of material
misrepresentations in KLA-Tencor's SEC filings during that
period.
The lead plaintiffs, who seek to represent the class, are the
Police and Fire Retirement System of the City of Detroit, the
Louisiana Municipal Police Employees' Retirement System, and the
City of Philadelphia Board of Pensions and Retirement.
The defendants are KLA-Tencor, Edward W. Barnholt, H. Raymond
Bingham, Robert J. Boehlke, Robert T. Bond, Gary E. Dickerson,
Richard J. Elkus, Jr., Jeffrey L. Hall, Stephen P. Kaufman, John
H. Kispert, Kenneth Levy, Michael E. Marks, Stuart J. Nichols,
Kenneth L. Schroeder, Jon D. Tompkins, Lida Urbanek and Richard
P. Wallace.
The Company and all other defendants filed motions to dismiss
these cases in June 2007 (Class Action Reporter, Sept. 20,
2007).
Under the recent settlement, the defendants denied the
allegations in the lawsuit and, as part of the proposed terms of
settlement, continue to deny all claims and liability.
The agreement in principle, which is subject to court approval,
documentation, and notice, would settle all claims against KLA-
Tencor and individual defendants, according to the law firm of
Berman DeValerio.
Berman DeValerio represents the Louisiana Municipal Police
Employees' Retirement System ("MPERS"), one of the co-lead
plaintiffs in the action.
Other co-lead plaintiffs in the case are the Police and Fire
Retirement System for the City of Detroit and the City of
Philadelphia Board of Pensions and Retirement.
"This is an excellent result," said Joe Tabacco, the Berman
DeValerio partner who oversaw the case for the firm. "By opening
boardrooms to public scrutiny, lawsuits like this one have
combined with government enforcement actions to help end these
types of backdating practices."
The proposed settlement provides that investors who purchased
KLA-Tencor securities from June 30, 2001, through and including
January 29, 2007 ("Settlement Class Period"), may be eligible to
file proofs of claims.
The suit is "In re KLA-Tencor Corp. Securities Litigation, No.
C06-04065," filed in the U.S. District Court for the Northern
District of California under Judge Martin J. Jenkins.
Representing the plaintiffs are:
Robert S. Green, Esq.
Green Welling LLP
595 Market Street, Suite 2750
San Francisco, CA 94105
Phone: 415-477-6700
Fax: 415-477-6710
E-mail: RSG@CLASSCOUNSEL.COM
- and -
Lesley Ann Hale, Esq.
Berman DeValerio Pease Tabacco Burt & Pucillo
425 California Street, Suite 2100
San Francisco, CA 94104
Phone: 415-433-3200
Fax: 415-433-6382
E-mail: lhale@bermanesq.com
Representing the defendants is:
Benjamin P. Smith, Esq.
Morgan, Lewis & Bockius, LLP
One Market, Spear Street Tower
San Francisco, CA 94105
Phone: 415-442-1000
Fax: 415-442-1001
E-mail: bpsmith@morganlewis.com
KVH INDUSTRIES: Court Grants Final Approval to $5.3 Settlement
--------------------------------------------------------------
The United States District Court for the District of Rhode
Island granted final approval to the proposed $5.3 million
settlement in the matter, "Sekuk Global, et al. v. KVH
Industries, Inc., et al., Case No. 1:04-cv-00306-ML," at the
Jan. 25 fairness hearing.
KVH also announced that on November 19, 2007 the Rhode Island
Superior Court granted final approval of the settlement of the
related derivative lawsuit filed by KVH shareholders against
certain of KVH's directors and officers.
Pursuant to the settlement agreements, the appeal of the
dismissal of another related derivative lawsuit pending in the
U.S. Court of Appeals for the First Circuit has also been
dismissed.
As a result of these actions, all claims in these three lawsuits
have been fully and finally settled and dismissed with prejudice
by the courts.
As previously disclosed, pursuant to the terms of the
settlements, KVH settled for a $5.3 million cash payment made by
its insurance carrier, together with KVH's agreement to adopt,
formalize, or reconfirm adherence to certain corporate
governance policies and practices.
"We are pleased to put this matter behind us and gratified that
all claims have been dismissed without any finding of wrongdoing
by KVH or its officers or directors," said Patrick Spratt, KVH's
chief financial officer.
Case Background
The suit was filed against the company and certain of its
officers in 2004 on behalf of a class of KVH shareholders. It
asserts claims under Sections 10(b) and 20(a) of the U.S.
Securities Exchange Act of 1934 and Rule 10b-5 under that
statute, as well as claims under Sections 11, 12(a)(2) and 15 of
the Securities Act of 1933, on behalf of purchasers of the
company's securities in the period Oct. 1, 2003 and July 2, 2004
and seeks certain legal remedies, including compensatory damages
(Class Action Reporter, April 3, 2007).
The Teamsters Affiliates Pension Plan has been appointed lead
plaintiff in the case. This matter consolidates into one action
eight separate complaints filed between July 24, 2004 and Sept.
15, 2004.
On Jan. 14, 2005, the defendants filed a motion to dismiss the
consolidated complaint for failure to state a claim upon which
relief can be granted. The court denied this motion in part and
granted it in part (Class Action Reporter, Dec. 9, 2005).
On Oct. 14, 2005, the defendants answered the consolidated
complaint and denied liability and all allegations of
wrongdoing.
Settlement Terms
Pursuant to the terms of the settlements, plaintiffs and their
attorneys will receive an aggregate cash payment of $5.3
million, all of which will be paid by KVH's insurance carrier
(Class Action Reporter, July 30, 2007).
Under the recent settlement, KVH also agreed to adopt,
formalize, or reconfirm adherence to certain corporate
governance policies and practices.
The suit is "Sekuk Global, et al. v. KVH Industries, Inc., et
al., Case No. 1:04-cv-00306-ML," filed in the U.S. District
Court for the District of Rhode Island, under Judge Mary M Lisi.
Representing the plaintiffs are:
Matthew F. Medeiros, Esq.
Little, Medeiros, Kinder, Bulman & Whitney
72 Pine St., 5th Floor
Providence, RI 02903
Phone: 401-272-8080
Fax: 401-521-3555
- and -
Barry J. Kusinitz, Esq.
155 South Main St., Suite 405
Providence, RI 02903
Phone: 401-831-4200
Fax: 401-831-7053
Representing the company are:
John H. Henn, Esq.
Kalun Lee, Esq.
Brandon F. White, Esq.
Foley Hoag LLP
155 Seaport Boulevard
Boston, MA 02210
Phone: 617-832-1000
Fax: 617-832-7000
- and -
Brooks R. Magratten, Esq.
Benjamin V. White III, Esq.
Vetter & White, Incorporated
20 Washington Place
Providence, RI 02903
Phone: 401-421-3060
Fax: 401-272-6803
INSURANCE BROKERAGE: N.J. Court Grants Summary Judgment Motion
--------------------------------------------------------------
The U.S. District Court for the District of New Jersey granted
defendants’ motion for summary judgment in the matter, “In re
Employee-Benefit Insurance Brokerage Antitrust Litigation, Case
No. 05-1079 (GEB).”
Case Background
The defendants in the case were:
-- Hartford Life and Accident Insurance Co.,
-- Prudential Insurance Co. of America,
-- Metropolitan Life Insurance Co.,
-- UNUM Life Insurance Co.,
-- AIG Insurance Co., and
-- Connecticut General Life Insurance Co.
The action involves numerous class actions filed against various
insurance brokers and insurers. The class actions allege
violations of federal and state antitrust laws, the Racketeer
Influenced and Corrupt Organizations Act (RICO), the Employee
Retirement Income Security Act (ERISA), and common law. These
class actions were later consolidated into the present action.
The suits claimed that the ERISA fiduciary breaches occurred
when the defendants did not disclose the amount of
fees/commissions they paid to brokers for the employer plan
business. The plaintiffs charged that the fees/commissions
should have been disclosed on their Form 5500.
On Aug. 15, 2005, plaintiffs filed their First Consolidated
Amended Employee Benefits Class Action Complaint. After these
causes of action were aligned and severed into two types of
matters (one involving commercial property and casualty
insurance coverages (Commercial Case) and the other involving
employee benefits insurance plans (Employee-Benefits Case), the
Court consolidated all actions into two accordingly aligned
dockets.
Consequently, Plaintiffs filed one consolidated amended
complaint per each respective docket, and then altered these two
submissions by filing two corrected amended complaints.
In the Court’s Oct. 3, 2006 Opinion, it found that Plaintiffs
had alleged few facts to demonstrate the necessary fiduciary
status to support their ERISA claim.
However, in viewing Plaintiffs’ allegations in a light most
favorable to Plaintiffs, the Court found that Plaintiffs alleged
enough facts to survive a dismissal.
The Court further stated that Plaintiffs’ ERISA claim would “be
more appropriately resolved upon motions for summary judgment”
when more facts would be available for analysis.
Accordingly, the Court ordered expedited discovery, leaving the
issue of Defendants’ fiduciary status to be addressed at summary
judgment.
On May 22, 2007, Plaintiffs filed their Second Amended
Complaint. Plaintiffs allege “the Broker Defendants conspired
with the Insurer Defendants to allocate the business of
plaintiffs and Class Members to the conspiring insurers, and to
protect those insurers from competition for that business, in
exchange for the payment of undisclosed fees, commissions and
other kickbacks by the Insurer Defendants.”
Plaintiffs allege that these actions constitute a breach of
Defendants’ fiduciary duty owed to Plaintiffs and the class
under ERISA Sections 502(a)(2) and (a)(3).
Plaintiffs allege further that these actions violated ERISA’s
Prohibited Transactions provision under Section 406(a)(1)(C),
(a)(1)(D), and (b)(3).
On June 21, 2007, Defendants filed the present Motion to Dismiss
and For Summary Judgment with respect to the ERISA Count in
Plaintiffs’ Second Amended Complaint.
Defendants argue that summary judgment should be granted because
Defendants were not ERISA fiduciaries with respect to the
challenged conduct. Defendants also argue that their lack of
fiduciary status dooms Plaintiffs’ Prohibited Transactions
Claims.
Defendants also make several other arguments for granting
summary judgment and also contend that Plaintiffs’ claim should
be dismissed because Plaintiffs seek an improper remedy under
ERISA.
Court Decision
In clearing the companies of any wrongdoing, the court’s ruling
declared that none of the six major insurance providers accused
in the commission conspiracy were fiduciaries under the Employee
Retirement Income Security Act (ERISA), according to a report by
Planadviser.com.
Ruling in now-consolidated class-action cases filed by numerous
employee benefit plans, Judge Garrett E. Brown, Jr. of the U.S.
District Court for the District of New Jersey asserted that the
providers did not breach their fiduciary duties through a
fee/commission agreement with brokers for employer benefit plan
business. Thus, the judge granted a request from the defendant
insurance providers and dismissed the cases.
Judge Brown accepted the insurance companies' argument that
while they may have exercised discretion in making benefit
payment decisions, that did not mean they were ERISA fiduciaries
in all situations.
The court also ruled the plaintiffs had not proven their
allegations that the insurance carriers misled them about the
fee/commission arrangement when the plaintiffs asked about it.
A copy of the decision is available free of charge at:
http://researcharchives.com/t/s?276c
For more information on the matter visit:
http://www.insurancebrokerageclasscounsel.com
The suit is “In re Employee-Benefit Insurance Brokerage
Antitrust Litigation, Case No. 05-1079 (GEB),” filed in the U.S.
District Court for the District of New Jersey under Judge
Garrett E. Brown Jr.
Representing the plaintiffs are:
Bryan L. Clobes, Esq.
Cafferty Faucher LLP
18th & Cherry Streets, One Logan Square, Suite 1700
Philadelphia, PA 19103
Phone: 215-864-2800
Fax: 215-864-2810
Web site: bclobes@millerfaucher.com
- and -
Edith M. Kallas, Esq.
Whatley, Drake & Kallas, LLC
1540 Broadway, 37th Floor
New York, New York 10036
Phone: 212-447-7070
Fax: 212-447-7077
E-mail: ekallas@whatleydrake.com
LAND TITLE: Settles Suit Over Real Estate Transaction Fees
----------------------------------------------------------
Shepherd, Finkelman, Miller & Shah, LLC revealed that on
December 17, 2007, the Circuit Court for Milwaukee County,
Wisconsin, the Honorable Jean W. DiMotto presiding, approved a
settlement on behalf of individuals and entities who were
charged certain fees at settlement in connection with real
estate transactions in Wisconsin.
Specifically, the Class involved in the settlement consists of
all persons or entities, who from April 20, 2000 to September
19, 2007, were charged fees in connection with real estate
transactions in Wisconsin by Land Title Services, Inc. or its
agents for recording releases of mortgages and for whom Land
Title or its agents did not record the release. Plaintiffs
alleged that Land Title did not perform the service associated
with the fees.
Under the terms of the settlement, SFMS was able to achieve a
full refund of fees for Class members in situations where
certain fees were collected by Land Title, but no service
associated with the particular fees was performed. In addition,
Land Title has agreed to modify its practice with respect to the
imposition, collection and disposition of the fees at issue.
MASSACHUSETTS: Town of Milford Faces Lawsuit Over Rental Bylaw
--------------------------------------------------------------
The Town of Milford, Massachusetts faces a class action in
Worcester Superior Court that was filed by a group of landlords
who are attempting to kill a bylaw requiring inspections of all
rental units, The Boston Globe reports.
The landlords' lawsuit, which was filed on Dec. 31, 2007, labels
the regulation as intrusive, unconstitutional, and unfair. It
was championed by Portuguese Cultural Alliance president Maria
Valenca on behalf of all owners of all nonowner-occupied rental
properties.
The lawsuit makes the following charges:
-- Count I: Article 37 violates plaintiffs' and other
similarly situated rental owners' equal protection
guarantees
-- Count II: The fees imposed by Article 37 constitute an
illegal tax
-- Count III: Article 37 violates landlords' Fourth
Amendment rights regarding unreasonable search and
seizure
-- Count IV: Article 37 violates landlords' due process
rights
The suit was filed by Valenca and local landlords Nascimento
Mendes, Victor Cardoso, Custodia Carvalho, Eliseu Monteiro,
Christina Pau-Preto, Antonio Gomes, Frank Alves, Rosa E. Soares,
Alcinda Ferreira, Camilo Pires, Amilcar Videira, Antonio
Monteiro, Maria Mendes, Hermenzindo Gonclaves, and Avelino
Carolino suing "on behalf of themselves and all others similarly
situated."
It was filed against the town of Milford, Public Health Director
Paul Mazzuchelli and RMX Northeast Inc., the Milford company
hired last year to measure the town's 4,000 rental units.
A Worcester Superior Court judge is scheduled to hear arguments
Jan. 28 for a preliminary injunction to stop Milford from
carrying on with Article 37 of the town bylaws.
The bylaw charges landlords of nonowner-occupied units a $50
registration fee, and an additional $15 to renew each unit
annually. It requires landlords to register their units and
allow inspectors from RMX Northeast Inc. to determine the
maximum habitable space for town records. RMX Northeast may
also report any obvious overcrowding or local health violations
to the Board of Health.
If a landlord fails to register units with the town, or if a
unit is found to be over capacity, the landlord may be expected
to comply within 30 days or be subject to a fine of up to $300.
The lawsuit requests that the bylaw be deemed unconstitutional
and invalid, and that the town be ordered to refund all of the
fees it has collected.
For more details, contact:
Matthew J. Dunn, Esq.
The Dunn Law Group
15 Broad Street, Fifth Flr.
Boston, MA 02109
Phone: (617) 725-0033
Cell: (617) 905-0986
Fax: (617) 725-0032
E-mail: mdunn@dunn-lawgroup.com
Web site: http://dunn-lawgroup.com/
MERRILL LYNCH: Faces ERISA Violations Lawsuit in N.Y. Court
-----------------------------------------------------------
Merrill Lynch & Co. Inc. and company executives are facing a
complaint filed in U.S. District Court for the Southern District
of New York on Nov. 29, 2007 for violations of the Employee
Retirement Income Security Act.
The suit (07 cv 10687) was brought as a class action by Carl
Esposito on behalf of participants in:
-- the Merrill Lynch 401(k) Savings and Investment Plan,
-- the Merrill Lynch Retirement Accumulation Plan,
-- the Merrill Lynch Employee Stock Ownership Plan
The suit raises these causes of actions:
Count 1: Failure to prudently and loyally manage the Plans and
assets of the plans,
Count II: failure to monitor fiduciaries
count III: Breach of Fiduciary Duty - Failure to provide
complete and accurate information to the Plans' Participants and
Beneficiaries
Count IV: Co-fiduciary Liability
The Plans allegedly suffered nearly $2 billion in losses. The
defendants are allegedly liable for the Plans' losses because:
(a) the Traditional ESOP's investment in Merrill Lynch
stock was the result of the Prudence Defendant's
decision to invest Company contributions in Merrill
Lynch stock; and
(b) as to the portion of 401(k) Plan's and the RAP's assets
invested in Merrill Lynch stock as a result of
participant and/or Company contributions, the Prudence
Defendants are liable for these losses because they
failed to take the necessary and required steps to
ensure effective and informed independent participant
control over the investment decision-making process, as
required by ERISA.
Plaintiffs are seeking monetary payment for the losses,
injunctive and equitable relief, and actual damages.
The purported class are all persons, other than defendants, who
were participants in or beneficiaries of the Plans at any time
between Jan. 18, 2007 and the present and whose accounts
included investments in Merrill Lynch stock.
For more information, contact:
Lynda J. Grant, Esq.
Cohen, Milstein, Hausfeld & Toll PLLC
150 East 52nd St.
13th Floor
New York, NY 10022
Phone: 212 838 7797
Fax: 212 838 7745
Lynn L. Sarko, Esq.
Derek W. Loeser, Esq.
Erin M. Riley, Esq.
Tyler L. Farmer, Esq.
1201 Third Ave., Suite 3200
Seattle, WA 98101-3052
Phone: (206) 623 1900
Fax: (206) 623 3384
MIVA INC: Settles Click Fraud Suit “Lance's Gifts v. Yahoo!”
------------------------------------------------------------
Global digital media company MIVA, Inc. has entered into a
settlement agreement with plaintiffs in the "Lane's Gifts LLC,
et al. v. Yahoo! Inc., et al.," class action litigation
regarding alleged click fraud pending in the Miller County
Circuit Court, Arkansas.
On Feb. 17, 2005, a putative class action was filed in Miller
County Circuit Court, Arkansas, against that company and others
in its sector by:
-- Lane's Gifts and Collectibles, LLC,
-- U.S. Citizens for Fair Credit Card Terms, Inc.,
-- Savings 4 Merchants, Inc., and
-- Max Caulfield d/b/a Caulfield Investigations, on behalf
of themselves and all others similarly situated.
Savings 4 Merchants and U.S. Citizens for Fair Credit Card
Terms, Inc. voluntarily dismissed themselves from the case,
without prejudice, on April 4, 2005.
The complaint names 11 search engines, web publishers, or
performance marketing companies as defendants, including the
company. It alleges breach of contract, unjust enrichment, and
civil conspiracy.
All of the plaintiffs’ claims are predicated on the allegation
that the plaintiffs have been charged for clicks on their
advertisements that were not made by bona fide customers.
The lawsuit was brought on behalf of a putative class of
individuals who allegedly “were overcharged for [pay per click]
advertising,” and seeks monetary damages, restitution,
prejudgment interest, attorneys’ fees, and other remedies.
The recent settlement agreement is subject to various
conditions, including, but not limited to, notice to the class
and final approval by the Arkansas court, which granted
preliminary approval to the settlement at a hearing held on
January 23, 2008. If approved, the agreement provides that all
claims against MIVA and its subsidiaries, including
indemnification obligations to a co-defendant, will be dismissed
without presumption or admission of any liability or wrongdoing.
Pursuant to the agreement, MIVA would establish a settlement
fund of $3,936,812, of which up to $1,312,270 would be in cash
for payment of plaintiffs attorneys fees and class
representative incentive awards and the balance would be in
advertising credits relating to the class members' advertising
spending with MIVA during the class period. Dismissal of the
PayDay Advance action is subject to approval of the court in New
York.
"MIVA is pleased to have reached a mutually satisfactory
settlement with these plaintiffs and believes that the
resolution of these cases will be a significant step forward in
our effort to focus on the future of our business rather than
expend resources litigating these issues," said John Pisaris,
MIVA's general counsel.
MIVA, Inc. -- http://www.miva.com-- together with its wholly
owned subsidiaries is an online media and advertising network
company. The Company provides targeted and measurable online
advertising campaigns for its advertiser and agency clients,
generating qualified consumer leads and sales.
The Company's solutions provide a range of products and services
through three customer-facing divisions: MIVA Media, MIVA Direct
and MIVA Small Business. MIVA derives its revenue primarily
from online advertising by delivering relevant contextual and
search ad listings to its third-party ad network and its MIVA-
owned consumer audiences on a performance basis. The Company
offers a range of products and services through three divisions:
MIVA Media, MIVA Direct and MIVA Small Business.
MIVA INC: Click Fraud Suit by Payday Advance in N.Y. Dismissed
--------------------------------------------------------------
Payday Advance Plus, Inc. has agreed to move to dismiss with
prejudice all claims it has asserted against MIVA, Inc. in the
class action “Payday Advance Plus, Inc. v. Findwhat.com, Inc. et
al., Case No. 1:06-cv-01923-JGK," such that the Payday Advance
Litigation would be settled and resolved in its entirety.
On March 10, 2006, Payday Advance Plus, Inc. filed a putative
class action against the company and Advertising.com, Inc. The
complaint alleges that Advertising.com, a MIVA Media Network
distribution partner, engaged in click fraud to increase
revenues to themselves with MIVA's alleged knowledge and
participation.
The lawsuit was brought on behalf of a putative class of
individuals who have allegedly been overcharged by the
defendants and seeks monetary damages, restitution, prejudgment
interest, attorneys' fees, injunctive relief, and
other remedies.
On May 12, 2006, MIVA moved to dismiss the Complaint. In an
order dated March 12, 2007, the Court denied MIVA’s motion to
dismiss the plaintiff’s breach of contract claim but granted the
motion as it related to the remainder of the plaintiff’s claims.
On April 2, 2007, the plaintiff filed an amended complaint in
which it dropped its claims against Advertising.com. The
amended complaint asserts only a claim for breach of contract
claim against MIVA (Class Action Reporter, Sept. 11, 2007).
Recently, Global digital media company MIVA, Inc. entered into a
settlement agreement with the plaintiffs in the "Lane's Gifts
LLC, et al. v. Yahoo! Inc., et al.," class action litigation
regarding alleged click fraud pending in the Miller County
Circuit Court, Arkansas.
Payday Advance is a party to the settlement agreement and has
agreed to move to dismiss with prejudice all claims it has
asserted against MIVA such that the Payday Advance Litigation
would be settled and resolved in its entirety.
"MIVA is pleased to have reached a mutually satisfactory
settlement with these plaintiffs and believes that the
resolution of these cases will be a significant step forward in
our effort to focus on the future of our business rather than
expend resources litigating these issues," said John Pisaris,
MIVA's general counsel.
The suit is "Payday Advance Plus, Inc. v. Findwhat.com, Inc. et
al., Case No. 1:06-cv-01923-JGK," filed in the U.S. District
Court for the Southern District of New York under Judge John G.
Koeltl.
Representing the plaintiffs are:
Robin Bronzaft Howald, Esq.
Robert M. Zabb, Esq.
Glancy Binkow & Goldberg, LLP
Phone: (917) 510-0009 and (310)-201-9150
Fax: (646) 366-0895 and (310)-201-9160
E-mail: hobbit99@aol.com
info@glancylaw.com
Representing the company is:
Karl Geercken, Esq.
Alston & Bird, LLP
90 Park Avenue
New York, NY 10016
Phone: 212-210-9400
Fax: 212-210-9444
E-mail: kgeercken@alston.com
MIVA INC: Settles “Cisneros” Suit Over Online Gambling Ads
----------------------------------------------------------
In addition to the Lane's Gifts and Payday Advance settlement,
MIVA, Inc. has also entered into a settlement agreement with the
plaintiffs in the "Mario Cisneros et al., v. Yahoo! Inc., et
al., Case No. CGC-04-433518," filed in the California Superior
Court in San Francisco County regarding advertising for internet
gambling.
Mario Cisneros and Michael Voight filed the suit on Aug. 3,
2004, on behalf of themselves, all other similarly situated,
and/or for the general public. The suit also names other
Internet search sites and service providers.
The complaint alleges that acceptance of advertising for
Internet gambling violates several California laws and
constitutes an unfair business practice.
The complaint seeks unspecified amounts of restitution and
disgorgement as well as an injunction preventing the company
from accepting paid advertising for online gambling.
Three of the company's industry partners, each of whom is a co-
defendant in the lawsuit, have asserted indemnification claims
against the company for costs incurred as a result of such
claims arising from transactions with the company.
On Oct. 11, 2005, Judge Kramer held a bifurcated trial on the
issue of whether California public policy and the doctrine of in
pari delicto are defenses to Plaintiffs’ claims for restitution
for the gambling losses Internet gamblers purportedly incurred
on Internet gambling sites, and Judge Kramer ruled that
California public policy barred Plaintiffs’ claim for
restitution.
On April 13, 2007 the Court ruled that Plaintiffs cannot obtain
disgorgement of revenues earned from ads for online gaming. The
remaining issue is whether the Court should issue an injunction
barring companies in MIVA’s industry from displaying ads for
online gaming.
In addition, three of MIVA’s industry partners, each of which is
a codefendant in the lawsuit, have asserted indemnification
claims against MIVA for costs incurred as a result of such
claims arising from transactions with MIVA, and MIVA entered
into an agreement with one of these industry partners to resolve
such claims.
Subsequently the partner with which MIVA entered into an
agreement was dismissed from the litigation, as well as several
additional of MIVA’s co-defendants.
In addition, Plaintiff Cisneros has been voluntarily dismissed
from the case, but two plaintiffs remain (Class Action Reporter,
Sept. 11, 2007).
The recent agreement provides that all claims against MIVA will
be dismissed without presumption or admission of any liability
or wrongdoing. Pursuant to the agreement, MIVA would pay a total
of $15,000 to establish a settlement fund to be used to educate
and assist the general public regarding excessive gambling and
MIVA shall maintain its current policy regarding gambling
advertisements for a period of four years.
The suit is "Mario Cisneros et al., v. Yahoo! Inc., et al., Case
No. CGC-04-433518," filed in the California Superior Court in
San Francisco County under Judge Richard A. Kramer.
Representing the plaintiffs is:
Ira P. Rothken, Esq.
The Rothken Law Firm
1050 Northgate Drive, Suite 520
San Rafael, CA 94903
Phone: (415) 924-4250
E-mail: feedback@techfirm.com
Web site: http://www.techfirm.com
NEW JERSEY: Mercer County Working to Settle Strip-Search Lawsuit
----------------------------------------------------------------
Officials of Mercer County, New Jersey are working to settle a
federal class action filed by a local man who alleges his civil
rights were violated when he was strip-searched in the county
jail two years ago, Andrew Kitchenman of The Times of Trenton
reports.
The suit, entitled, “Boisselle v. The County of Mercer et al.,
Case No. 3:06-cv-02065-GEB-TJB,” was filed in the U.S. District
Court for the District of New Jersey back in May 2006.
According to the report, the plaintiff, Trafford Boisselle, was
strip searched before a corrections officer after being arrested
in January 2006 on motor-vehicle and disorderly conduct
warrants. The suit alleges that the search violates the
constitutional rights of Mr. Boisselle, and at least 5,000 other
inmates because officers didn't have probable cause to perform
the searches.
According to William Riback, Mr. Boisselle's attorney, "He was
humiliated by the experience, as you can imagine."
Named as defendants in the case are:
-- Mercer County,
-- Sheriff Kevin Larkin,
-- Warden Shirley Tyler, and
-- five other county employees.
According to the report, Judge Tonianne J. Bongiovanni had
ordered the two sides to report on the progress of a mediation
this month. However, the county asked for an extension because
of the dispute with its insurance companies. Retired U.S.
District Court Judge Joel B. Rosen is mediating between the two
parties.
The suit is “Boisselle v. The County of Mercer et al., Case No.
3:06-cv-02065-GEB-TJB,” was filed in the U.S. District Court for
the District of New Jersey back in May 2006.
Representing the plaintiffs are:
Elmer Robert Keach, III, Esq.
1040 Riverfront Center, PO Box 70
Amsterdam, NY 12010
Phone: (518) 434-1718
E-mail: bobkeach@keachlawfirm.com
Seth R. Lesser, Esq.
Law Offices of Gene Locks, PLLC
457 Haddonfield Road, Suite 500
Cherry Hill, NJ 08002
Phone: (856) 663-8200
E-mail: slesser@lockslawny.com
- and -
William A. Riback, Esq.
527 Cooper Street, Second Floor
Camden, NJ 08102
Phone: (856) 342-9700
E-mail: ribacklaw@aol.com
Representing the defendants is:
Gregory J. Giordano
Lenox, Socey, Wilgus, Formidoni, Brown, Biordano &
Casey LLC
3131 Princeton Pike, Building 1B
Trenton, NJ 08648
Phone: (609) 896-2000
E-mail: ggiordano@lenoxlaw.com
PLANET TOYS: Faces Suit Over Asbestos in CSI Field Kit Toys
-----------------------------------------------------------
Planet Toys' and CBS Broadcasting are facing a class-action
complaint filed in federal court claiming its "CSI Fingerprint
Examination Kit-CSI Field Kit" toys contain toxic Tremolite, a
form of asbestos, the CourtHouse News Service reports.
Named plaintiff Jeffrey Morris says the fibers are contained in
the white fingerprint powder and Planet Toys' claim that the
toys are safe is false and deceptive.
According to a company statement found in their website, the
company responded the day after “a Seattle Washington newspaper
published a story regarding a Consumer Awareness Organization
the “Asbestos Disease Awareness Organization”-(ADAO) reporting
their testing for asbestos and subsequent findings within
selected products from several consumer products companies.
Their random testing ranged from companies such as 3M, alleging
asbestos content in some of their home improvement tape, to
Planet Toys’ CSI Fingerprint kits, among others, which they
further alleged, contained up to 7% asbestos in some of the
powders.”
The company contacted “Paradigm Testing Laboratories in
Rochester New York, per the suggestion of Bureau Veritas (BV),
and conducted same day testing on 18 different samples of the
fingerprint powder, all of which clearly stated “No Asbestos”
detected. We then tested another 12 samples from the same lot
that the ADAO tested-(Lot 100) claiming their findings of an
asbestos content, here again Paradigm Labs confirmed “No
Asbestos detected.”
Planet Toys is thus issuing an immediate "Stop Sale" for the CSI
Fingerprint Examination Kit and CSI Field Kit to all retailers.
All retailers are instructed to immediately stop the sale of the
CSI Fingerprint Examination Kit (Item #1204, #1213, and #1225)
and CSI Field Kit (Item #1209).
Planet Toys, Inc. -- http://www.planettoys.com/-- is an
international toy manufacturer specializing in the development
of a wide variety of children's products. Our categories span
from preschool through radio control cars for the child and
adult to enjoy.
RAJA FOODS: Recalls Food Packages Containing High Lead Levels
-------------------------------------------------------------
Raja Foods LLC of Skokie, Il. is recalling its 3.5 oz. (100 g)
packages of "SWAD BRAND: ABIL, GULAL, KANKU, KUM KUM," and "SWAD
BRAND: LAGAN SAMAGRI KIT, and POOJA SAMAGRI KIT" because the
product contains high levels of lead.
Lead is very toxic and dangerous to humans, especially children,
women of childbearing age, pregnant women and their unborn
children. Although people with lead in their blood often do not
exhibit the symptoms of lead toxicity, such symptoms include the
following: stomach aches, colic, nausea, vomiting, abnormal
irritability, and insomnia. Lead can also permanently damage the
central nervous system, resulting in learning difficulties in
school children as well as cause other long-term health
problems.
These products were distributed through Indian grocery stores in
Colorado, Georgia, Iowa, Illinois, Indiana, Kansas, Michigan,
Minnesota, Missouri, Nebraska, New York, Ohio, Oregon,
Tennessee, Texas, Washington and Wisconsin.
These products are used in India for religious purposes and are
intended to be placed on the skin or hair. Although the product
was not intended to be sold for food use, its labeling may be
confusing and may imply it may be used as food. The ABIL, GULAL,
KANKU,and KUM KUM product is distributed in a 3.5 oz. (100 g)
plastic bag with a front label stating "SWAD BEST TASTE IN TOWN
SINDOOR", "FOR RECIPE IDEAS VISIT OUR WEBSITE:
WWW.RAJAFOODS.COM", and "PRODUCT OF INDIA." The LAGAN SAMAGRI
and POOJA SAMAGRI product is distributed in plastic bins with a
front label stating "SWAD BEST TASTE IN TOWN POOJA SAMAGRI" SWAD
BEST TASTE IN TOWN LAGAN SAMAGRI" The back label states
"Imported and Distributed by: Raja Foods, 8110, N. St. Louis
Avenue, Skokie, ILL 60076", and a sticker stating "NONEDIBLE".
External use of the product does not pose a health hazard.
Consumers who have purchased any of these products are urged to
return them to the place of purchase for a full refund.
Consumers with questions may contact the company at 1-800-800-
7923 x 2860.
SMITH & WOLLENSKY: Faces N.Y. Suit Alleging FLSA Violations
-----------------------------------------------------------
The Smith & Wollensky Restaurant Group, and Forth Walls
Restaurant LLC face a class action in the U.S. District Court
for the Southern District of New York, alleging violations of
the Fair Labor Standards Act, The New York Magazine reports.
The suit was filed by two captains and a waiter against the
defendants on Jan. 4, 2008. In general, it alleges, that
defendants violated wage laws by forcing them to pool their tips
with non-tipped employees like dishwashers, expediters, and
coffee makers.
Listed as plaintiffs in the matter are:
-- Mary Harvey,
-- Muhammad Islam,
-- Salim Shahriar,
-- Andrew Mellor,
-- Maria Zayaruzny,
-- Masud Ahad, and
-- Suhel Ahmed.
The plaintiffs are represented in the matter by Attorney Maimon
Kirschenbaum of Joseph & Herzfeld, LLP.
The suit is “Shahriar et al v. Smith & Wollensky Restaurant
Group, Inc. et al., Case No. 1:08-cv-00057-MGC,” filed in the
U.S. District Court for the Southern District of New York under
Judge Miriam Goldman Cedarbaum.
Representing the plaintiffs are:
Daniel Maimon Kirschenbaum, Esq.
Joseph and Herzfeld
757 3rd Avenue
NY, NY 10017
Phone: (212) 688-5640x2548
Fax: (212) 688-5639
E-mail: maimon@jhllp.com
STATE STREET: Amended Complaints Filed in N.Y. ERISA Lawsuit
------------------------------------------------------------
The Unisystems, et al. v. State Street Bank & Trust Company, et
al. and the Merrimack Mutual Fire Insurance Co., et al. v. State
Street Bank & Trust Company, et al. Amended ERISA Complaints
were filed in the United States District Court, Southern
District of New York, on behalf of Plaintiffs and a class of all
qualified ERISA plans and beneficiaries thereof, who were at any
time between January 1, 2007 and October 5, 2007 invested in
bond funds managed by State Street Bank & Trust Co. or State
Street Global Advisors, including but not limited to the
following:
* Intermediate Bond Fund for Employee Trusts;
* SSgA Enhanced Intermediate Bond Fund;
* Daily Bond Market Fund;
* Core Intermediate Credit Bond Fund;
* Daily Corporate/Government Bond Fund;
* SSgA Yield Plus Fund;
* Total Bond Market Fund;
* SSgA Bond Market Fund; and
* Limited Duration Bond Fund.
In both Complaints Plaintiffs assert that State Street breached
its fiduciary duties under the Employee Retirement Income
Security Act of 1974 by failing to prudently and loyally manage
the Plans’ assets during the Class Period and seek to recover
losses that were caused by State Street’s actions.
Plaintiffs allege that State Street caused losses to the
Plaintiffs’ retirement plans, and to ERISA retirement plans
throughout the country, by investing purportedly conservative,
risk-averse bond funds in high-risk mortgage backed securities
and exotic financial instruments. Certain bond funds managed by
State Street increased their holdings of mortgage-backed
securities from just 8% in September 2006 to 25% in March 2007,
despite the fact that the indices those funds were supposed to
track are comprised 60% of Government bonds, with the remainder
comprised largely of Corporate bonds.
In addition, Plaintiffs allege that State Street highly
leveraged those investments by purchasing mortgage-backed
securities using borrowed money, thus compounding the risk to
investors. As a result of those imprudent investments, bond
funds managed by State Street – which were supposed to track a
well-defined index of investment-grade U.S. Government and
Corporate bonds – lost up to 40% of their value when the market
for mortgage-backed securities collapsed in August 2007. As the
Investment Manager for the bond funds, State Street may be
liable under ERISA for the losses caused by its imprudent
management of those funds.
SUNWEST MANAGEMENT: Settles Cal., Ore Elder Care Suits for $5M
--------------------------------------------------------------
An unprecedented move by residential elder care operator Sunwest
Management was made recently when it came to the table to settle
two class actions, one in California (Case #07CC00005), which
was filed Dec. 21, 2007 in Orange County Superior Court, and one
in Oregon (Case #0703-03248), which has received preliminary
approval by the Multnomah County Circuit Court and should
receive final approval in February 2008.
The California suit was filed on behalf of Sophie Bury by and
through her Attorney in Fact, Patricia Bury, and on behalf of
all California citizens who resided in, or are residing in, a
California Sunwest facilites from Jan. 15, 2003 through Jan. 15,
2007 (Class Action Reporter, Jan. 15, 2007).
California lawyer Kathryn Stebner filed the Oregon suit on
behalf of Cathleen Naylor, 81, and Gwen Olmstead, 80, residents
of Sunwest-operated Deer Meadow Assisted Living in Sheridan, and
on behalf of 50 Oregon nursing homes operated by Salem-based
Sunwest Management (Class Action Reporter, Mar. 28, 2007).
"I have handled hundreds of elder abuse cases, and never before
have I seen a company like Sunwest take a good hard look at
itself and willingly come to the table prepared to take
responsibility for its actions and to make changes to ensure its
residents are given the best possible care it can give them,"
says Long Beach, Calif., plaintiff attorney Stephen M. Garcia of
The Garcia Law Firm. "Most of these companies run and hide so
they can continue to profit unlawfully from the pain and
suffering of our vulnerable elders. I believe Sunwest is
starting a new chapter today."
In a rare break from tradition among elder care facilities,
Sunwest Management is not requiring that the settlements be kept
confidential. Though the company is not admitting to the
specific allegations by settling the cases, the litigation
resulted in revealing areas needed to be improved.
The California action settled for $4.5 million, and the Oregon
suit settled for $1 million. Sunwest is compensating the
plaintiffs in each case with per diem compensation for days
spent in a Sunwest "community" during the specified time period.
In California, this time frame is Jan. 15, 2003 through Jan. 15,
2007. In Oregon, the range is March 22, 2006 through March 22,
2007.
In the settlements, Sunwest also states that any money not
claimed will be used for its facilities and for services for its
residents. The company is agreeing to the appointment of an
independent monitor who will undertake quarterly inspections of
select Sunwest facilities. In order to ensure the credibility of
the monitor's independence, Sunwest has chosen to abdicate any
involvement in the selection of the monitor, who will be
selected by plaintiff attorney Stephen M. Garcia of The Garcia
Law Firm.
"Sunwest Management cares about its residents," says Sunwest
attorney Timothy R. Graves of Lewis Brisbois Bisgaard & Smith.
"After a thorough self-assessment, the company decided that the
best way it could demonstrate its concern for each and every
resident whose care is entrusted to them was to spend company
money in improving residential care rather than spending that
same money in litigation."
Each of the class action complaints alleged that Sunwest
Management, Inc., its directors, and the approximately 16
residential elder care facilities in the state of California and
the more than 50 facilities in Oregon that it owns, operates or
manages, failed to comply with applicable laws and regulations
governing the operation of residential care facilities for the
elderly, resulting in the defendants receiving multiple
citations of deficiencies from the California Department of
Social Services and the Oregon Department of Human Services,
respectively.
The lawsuits alleged that Sunwest and its facilities
deliberately understaffed its "communities" by forcing each
facility to operate under a budget, approved and directed by
Sunwest Management and the directors of the individual
facilities, that would increase business profits by charging for
services that were not provided, such as adequately staffing the
residential care facility as it advertises that it does.
"This settlement demonstrates how our civil justice system can
spur meaningful social change," says Mr. Garcia. "The residents
will benefit from safe, specialized care at a Sunwest facility,
which is ensured by an independent monitor. Moreover, Sunwest
Management has the opportunity to become a nationwide showpiece
among elder care facilities known for offering excellent care to
its residents while it makes a fair profit for the company."
Sunwest Management, headquartered in Salem, Oregon, operates
approximately 250 elder care facilities nationwide. It is one of
the leading elder care management and operators of such
facilities in the country.
For more information, contact:
Geri Wilson
The Jonathan Group
626-403-6741
E-mail: gerij9@yahoo.com
UNIVERSITY OF CALIFORNIA: Court Denies Review of $34M Award
----------------------------------------------------------
The University of California now owes former professional
students at least $40 million after the state Supreme Court on
denied to review a lower court's ruling that the UC had violated
contracts not to raise fees.
The case, Kashmiri v. Regents of the University of California,
is a class-action lawsuit centered on fee increases during the
2002-2003 university year.
Ricardo Vazquez, a spokesman for the university, said the UC is
"disappointed," but the court's decision is final.
"At this point, the ruling just came down, so what will happen
now is a process of the university considering options of how to
deal with the financial impact," he said.
Mr. Vazquez said it was too early to say whether current
students would face fee increases to offset the judgment.
In March 2006, a San Francisco County court ruled in favor of
students. The First District Court of Appeals ruled on Nov. 2 to
uphold that ruling, writing in the decision that implied
contracts had been formed in UC literature, both in published
catalogs and online.
The appellate court ruled that the fee increases, some of which
were levied after the semester had begun, violated stated
promises from the UC not to raise fees for students.
The decision also said that additional fees had been levied
after students had received bills stating exactly how much they
owed.
"I think that the main effect of the case is to reaffirm that
basic contract law applies to students in agreement with the
university," said Andrew Freeman, one of the lawyers
representing the professional students.
Mohammad Kashmiri, the lead plaintiff, told the Daily Bruin in
November that some students were forced to withdraw because they
could not meet the additional financial burdens.
As the UC appealed the first decision, interest on the amount
owed has been assessed at a rate of 10 percent each year. The
original $33,825,712, owed as of March 2006, increased to more
than $39 million by the November decision and is now at about
$40 million, according to Freeman.
Mr. Vazquez said that general counsel for the university felt
that the UC had "very good grounds" for its latest appeal.
"The policy that fees could go up without notice had been or was
in many areas and publications. The fees were subject to
change," Vazquez said.
Mr. Freeman is also representing a second group of UC students
in Luquetta v. Regents of the University of California on
similar breach of contract charges during the 2003-2004 academic
year. He referred to the decisions in favor of the students in
the Kashmiri case as "a precedent that is helpful in the next
case."
Mr. Vazquez said it would be only speculation at this point to
consider whether the state Supreme Court's decision not to
review the Kashmiri case would have an effect on the Luquetta
case.
A concrete effect of the lawsuits, however, is that the UC has
stopped making written promises not to increase fees.
"Those policies were rescinded and all those references that
happened to be in certain publications were removed," Vazquez
said.
WASHINGTON MUTUAL: Faces ERISA Violations Lawsuit in Wash.
----------------------------------------------------------
The “Bushansky v. Washington Mutual, Inc., et al.” ERISA
Complaint was filed in the United States District Court Western
District of Washington on Nov. 20, 2007.
It was filed behalf of Plaintiff and a class of all persons who
were participants in or beneficiaries of the Washington Mutual
Savings Plan between July 19, 2006 and the present and whose
accounts included investments in Washington Mutual common stock.
In the Complaint Plaintiff alleges that during the Class Period
the Defendants breached their fiduciary duties to Plaintiffs and
the Class members by:
* failing to prudently and loyally manage the Plan’s assets;
* failing to monitor fiduciaries;
* failing to provide complete and accurate information to
the Class;
* knowingly participating in a fiduciary breach; and
* co-fiduciary liability.
The suit was filed by Gregory Bushansky. It is seeking
compensation for losses, and actual damages, among others.
For more information, contact the plaintiff's counsel:
Lynn L. Sarko, Esq.
Derek W. Loeser, Esq.
Erin M. Riley, Esq.
Tyler L. Farmer, Esq.
1201 Third Ave. Suite 3200
Seattle, WA 98101 3052
Phone: (206) 623 1900
Fax: (206) 623 3384
E-mail: lsarko@kellerrohrback.com
dloeser@kellerrohrback.com
eriley@kellerrohrback.com
tfarmer@kellerrohrback.com
New Securities Fraud Cases
LEVITT CORP: Coughlin Stoia Files Securities Fraud Suit in Fla.
---------------------------------------------------------------
Coughlin Stoia Geller Rudman & Robbins LLP announced that a
class action has been commenced in the United States District
Court for the Southern District of Florida on behalf of
purchasers of Levitt Corp. common stock during the period
between January 31, 2007 and August 14, 2007.
The complaint charges Levitt and certain of its officers and
directors with violations of the Securities Exchange Act of
1934.
Levitt, together with its subsidiaries, operates as a
homebuilding and real estate development company in the
southeastern United States.
According to the complaint, on January 31, 2007, Levitt
announced that it agreed to merge with BFC Financial Corp
("BFC"). Based on BFC stock's closing price on the previous
trading day, the proposed transaction valued Levitt stock at
$14.41 per share - a premium of 32 percent over the closing
price of $10.88 per share on the previous trading day. The
complaint alleges that, during the Class Period, defendants
issued materially false and misleading statements and failed to
disclose:
(i) that the Company's Levitt and Sons subsidiary was in
much worse financial condition than publicly
represented. Levitt and Sons was saddled with excessive
amounts of unneeded and overpriced land which would not
be feasible to develop for some time. Furthermore,
Levitt and Sons was struggling to complete projects it
had already begun and in many instances was failing to
complete construction of homes that it had already sold
as it lacked the financial resources to follow through
on its contracts;
(ii) that as a result of the foregoing, the Company was
materially overstating its financial results because it
was failing to timely record an impairment in the value
of its homebuilding inventory at Levitt and Sons.
Although Defendants acknowledged the difficult housing
market, their public statements failed to advise
investors of the true financial condition of the
Company;
(iii) that the Company's loans and advances to Levitt and
Sons would not be recovered as the subsidiary lacked
the financial resources to pay now and in the
foreseeable future; and (iv) that Levitt and Sons was
insolvent.
Then, on August 15, 2007, the Company announced that the merger
agreement with BFC had been terminated, without giving any
explanation. Upon this news, shares of the Company's stock fell
$0.79 per share, or over 21%, to close at $2.96 per share.
Subsequently, on November 9, 2007, it was announced that Levitt
and Sons filed for bankruptcy under Chapter 11 of the U.S.
Bankruptcy Code.
Plaintiff seeks to recover damages on behalf of all purchasers
of Levitt common stock during the Class Period.
For more information, contact:
Samuel H. Rudman
David A. Rosenfeld
Coughlin Stoia Geller Rudman & Robbins LLP
Phone: 800-449-4900
E-mail: djr@csgrr.com
PANERA BREAD: Coughlin Stoia Files Securities Fraud Suit in Mo.
---------------------------------------------------------------
Coughlin Stoia Geller Rudman & Robbins LLP announced that a
class action has been commenced in the United States District
Court for the Eastern District of Missouri on behalf of
purchasers of Panera Bread Co. common stock during the period
between November 1, 2005 and July 26, 2006.
The complaint charges Panera Bread and certain of its officers
and directors with violations of the Securities Exchange Act of
1934. Panera Bread engages in the ownership and franchising of
bakery-cafes in the United States under the Panera Bread(R) and
Saint Louis Bread Co.(R) names.
According to the complaint, throughout the Class Period, the
Company highlighted its increasing system-wide sales and, as a
result, continuously increased its earnings guidance. Moreover,
the Company was rapidly opening new locations throughout the
United States. Unbeknownst to shareholders, the Company's
aggressive growth strategy was causing the Company to experience
declining sales at its existing stores.
Additionally, the complaint alleges that, throughout the Class
Period, defendants issued materially false and misleading
statements and failed to disclose:
(i) that the Company was experiencing negative trends in
its business which were causing it to experience rising
expenses and slow growth;
(ii) that the Company's store expansion strategy was causing
the Company to yield a lower return on capital and
experience a decline in sales per restaurant as the
Company's new store openings began to cannibalize sales
from existing stores; and
(iii) as a result of the foregoing, defendants lacked a
reasonable basis for their positive statements about
the Company, its prospects and revenue growth rate.
Then, on July, 26, 2006, Panera Bread announced its financial
results for the second quarter of 2006, the period ended June
27, 2006. In response to this announcement, the price of Panera
Bread common stock fell $7.34 per share, or approximately 12%,
to close at $51.93 per share, on extremely heavy trading volume.
Plaintiff seeks to recover damages on behalf of all purchasers
of Panera Bread common stock during the Class Period.
For more information, contact:
Samuel H. Rudman
David A. Rosenfeld
Coughlin Stoia Geller Rudman & Robbins LLP
Phone: 800-449-4900
E-mail: djr@csgrr.com
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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
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Mendoza, Editors.
Copyright 2008. All rights reserved. ISSN 1525-2272.
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