C L A S S A C T I O N R E P O R T E R
Wednesday, February 13, 2008, Vol. 10, No. 31
Headlines
AFFILIATED COMPUTER: New Complaint Filed in Del. Buyout Lawsuit
APPLERA CORP: Still Faces Antitrust Suit Over Taq DNA Polymerase
ASHLAND INC: Reaches $7.9M Settlement in Ohio Antitrust Lawsuit
BENJAMIN INTL: Recalls Pendants, Candles Posing Lead Exposure
CONSTELLATION ENERGY: Faces Suit Over Groundwater Contamination
DEUTSCHE BANK: Cleveland Firm Slaps Lawsuit Over Foreclosure
DIRECTV INC: Faces Calif. Suit Over Fraudulent Sale of Receivers
GROUP HEALTH: Trial on Suit Over Abusive Doctor Continues
HANGZHOU ZHONGCE: Drops Dismissal Motion on Jurisdiction Issue
HILLSBOROUGH COUNTY: Faces Suit Over Reservist's Reinstatement
IPO LITIGATION: Defendants Seek Dismissal of N.Y. IPO Litigation
KIA MOTORS: Superior Court Upholds $4.1M Fees in Sephia Suit
LUMENIS, LTD: Seeks Shareholders' OK for Securities Suit Deal
MET-RX USA: No Trial Set for Calif. Prohormone Supplements Suit
MET-RX USA: N.J. Suit Over Prohormone Supplements Remains Stayed
NAVARRE CORP: Minn. Judge to Give Final Approval for Settlement
PETROLEUM DEVELOPMENT: Faces Consolidated Colo. Royalties Suit
POLO RALPH: Still Faces Several Labor-Related Lawsuits in Calif.
PRESTIGE BRANDS: Mediation Fails to Produce Settlement for Suit
QUANTUM CORP: Wash. Court Grants Final OK to ADIC Suit Agreement
REAL ESTATE COS: Faces Suit Over Real Estate Appraisal Practices
REXALL SUNDOWN: Calif. Court Stays Lawsuit Over Nutrition Bars
SPRINT NEXTEL: Sales Reps File Suit in KS to Recover Commissions
STARBUCKS COFFEE: No Trial Date Fixed for Fla. Overtime Lawsuit
STARBUCKS CORP: February 2008 Trial Slated for Tex. ERISA Suit
STARBUCKS CORP: No Trial Date Set for Calif. Suit on Appeal
T ROWE PRICE: Continues to Face Suit Over Foreign Securities
TREK BICYCLE: Recalls Girls Bicycles Due To Frame Failure
WASHINGTON MUTUAL: Faces Lawsuit in OH Over House Foreclosures
New Securities Fraud Cases
MUNICIPAL MORTGAGE: Schiffrin Barroway Files NY Securities Suit
ORION ENERGY: Roy Jacobs Files Securities Fraud Suit in N.Y.
SIRF TECHNOLOGY: Bernard Gross Files Securities Fraud Suit in CA
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AFFILIATED COMPUTER: New Complaint Filed in Del. Buyout Lawsuit
---------------------------------------------------------------
The plaintiffs in the class action captioned "In Re Affiliated
Computer Services, Inc. Shareholder Litigation, Civil Action No.
2821-VCL," filed a Consolidated Amended Class Action and
Derivative Complaint in the matter, adding allegations of breach
of fiduciary duties.
Several lawsuits have been filed in connection with an attempted
buyout of the company by founder Darwin Deason and Cerberus
Capital Management LP. The suits generally allege claims
related to breach of fiduciary duty, and are seeking class
action status. The plaintiffs in each case purport to be ACS
stockholders bringing a class action on behalf of all of the
company's public stockholders.
Each plaintiff alleges that the proposal presented to the
company by Mr. Deason and Cerberus on March 20, 2007, to acquire
its outstanding stock is unfair to shareholders because the
consideration offered in the proposal is alleged to be
inadequate and to have resulted from an unfair process.
In the Delaware Chancery Court, six cases were filed:
-- "Momentum Partners v. Darwin Deason, Lynn R. Blodgett,
Joseph P. O’Neill, Frank A. Rossi, J. Livingston
Kosberg, Robert B. Holland, Dennis McCuistion,
Affiliated Computer Services, Inc., and Cerberus
Capital Management, L.P., Civil Action No. 2814-VCL,"
filed on March 20, 2007.
-- "Mark Levy v. Darwin Deason, Lynn Blodgett, John
Rexford, Joseph P. O’Neill, Frank A. Rossi, J.
Livingston Kosberg, Dennis McCuistion, Affiliated
Computer Services, Inc., and Cerberus Capital
Management, L.P., Civil Action No. 2816-VCL," filed on
March 21, 2007.
-- "St. Clair Shores Police and Fire Retirement System v.
Darwin Deason, Lynn Blodgett, Joseph P. O’Neill, Frank
A. Rossi, J. Livingston Kosberg, Dennis McCuistion,
Robert B. Holland, Cerberus Capital Management, L.P.,
Citigroup Global Markets Inc., and Affiliated Computer
Services, Inc., Civil Action No. 2821-VCL," in the
Court of Chancery of the State of Delaware in and for
New Castle County, filed on March 22, 2007.
-- "Louisiana Municipal Police Employees’ Retirement
System v. Darwin Deason, Joseph P. O’Neill, Frank A.
Rossi, J. Livingston Kosberg, Dennis McCuistion,
Robert B. Holland, Affiliated Computer Services, Inc.,
and Cerberus Capital Management, L.P., Civil Action
No. 2839-VCL," in the Court of Chancery of the State
of Delaware in and for New Castle County, filed on
March 26, 2007.
-- "Edward R. Koller v. Darwin Deason, Frank A. Rossi, J.
Livingston Kosberg, Robert B. Holland, Affiliated
Computer Services, Inc., and Cerberus Capital
Management, L.P., Civil Action No. 2908-VCL," in the
Court of Chancery of the State of Delaware in and for
New Castle County, filed on April 20, 2007.
-- "Suzanne Sweeney Living Trust v. Darwin Deason, Lynn
R. Blodgett, John H. Rexford, Joseph P. O’Neill, Frank
A. Rossi, J. Livingston Kosberg, Dennis McCuistion,
Robert B. Holland, Affiliated Computer Services, Inc.,
and Cerberus Capital Management, L.P., Civil Action
No. 2915-VCL," in the Court of Chancery of the State
of Delaware in and for New Castle County, filed on
April 24, 2007.
On May 4, 2007, each of the six Delaware buy-out cases was
consolidated into one case, pending in the Delaware Chancery
Court, entitled, "In Re Affiliated Computer Services, Inc.
Shareholder Litigation, Civil Action No. 2821-VCL."
Subsequently, on Oct. 30, 2007, Cerberus withdrew its offer to
acquire ACS.
On Nov. 2, 2007, a Consolidated Amended Class Action and
Derivative Complaint was filed by the plaintiffs, adding
allegations of breach of fiduciary duties related to the events
surrounding the resignation of the outside directors, according
to the company's Feb. 8, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
Dec. 31, 2007.
Affiliated Computer Services, Inc. -- http://www.acs-inc.com--
provides business process outsourcing and information technology
services to commercial and government clients.
APPLERA CORP: Still Faces Antitrust Suit Over Taq DNA Polymerase
----------------------------------------------------------------
Applera Corp. and Hoffmann-La Roche, Inc., continue to face a
certified class action lawsuit filed by Molecular Diagnostics
Laboratories with the U.S. District Court for the District of
Columbia over alleged anticompetitive practices.
Molecular Diagnostics filed the complaint against the defendants
on Sept. 23, 2004, which complaint was amended on July 5, 2006.
The amended complaint alleges anticompetitive conduct in
connection with the sale of Taq DNA polymerase. The
anticompetitive conduct is alleged to arise from the prosecution
and enforcement of U.S. Patent No. 4,889,818.
The patent is assigned to Hoffmann-La Roche, with whom Applera
has a commercial relationship covering, among other things, the
patent and the sale of Taq DNA polymerase.
The complaint seeks monetary damages, costs, expenses,
injunctive relief, and other relief, as the court deems proper.
On July 5, 2006, the court certified the case as a class action.
The company reported no material development in the matter in
its Feb. 8, 2008 form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Dec. 31, 2007.
The suit is "Molecular Diagnostics Laboratories v. Hoffmann-La
Roche, Inc. et al, Case No. 1:04-cv-01649-HHK," filed with the
U.S. District Court for the District of Columbia, Judge Henry H.
Kennedy presiding.
Representing the plaintiffs are:
Paul Thomas Gallagher, Esq.
Cohen, Milstein, Hausfeld & Toll, P.L.L.C
1100 New York Avenue, NW West Tower, Suite 500
Washington, DC 20005-3934
Phone: (202) 408-4600
Fax: (202) 408-4699
e-mail: pgallagher@cmht.com
- and -
Scott E. Gant, Esq.
Boies, Schiller & Flexner
5301 Wisconsin Avenue, NW Suite 800
Washington, DC 20015
Phone: (202) 237-2727
e-mail: sgant@bsfllp.com
Representing the defendants are:
Joanne M. Guerrera, Esq.
Weil, Gotshal & Manges, L.L.P.
1501 K Street, NW
Washington, DC 20005
Phone: (202) 682-7153
Fax: 202-857-0939
e-mail: david.southard@weil.com
- and -
Heather Holden Brooks, Esq.
Arnold & Porter, LLP, 555 12th Street, NW
Washington, DC 20004-1206
Phone: (202) 942-6309
Fax: (202) 942-5999
e-mail: holden_brooks@aporter.com
ASHLAND INC: Reaches $7.9M Settlement in Ohio Antitrust Lawsuit
---------------------------------------------------------------
Ashland, Inc., reached a $7.9 million settlement in the class
action titled "In Re: Foundry Resins Antitrust Litigation, Case
No. 2:04-md-01638-GLF-MRA," which is pending with the U.S.
District Court for the Southern District of Ohio, according to
the company's Feb. 8, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
Dec. 31, 2007.
In response to an investigation by the U.S. Department of
Justice that was closed in 2006 without criminal or civil
allegations being made by the government, several foundry owners
have filed lawsuits seeking class-action status for classes of
customers of foundry resins manufacturers such as Ashland (Class
Action Reporter, Jan. 7, 2008).
These cases have been consolidated for pretrial purposes in the
U.S. District Court for the Southern District of Ohio. The suit
was filed before Judge Gregory L. Frost with referral to Mark R.
Abel.
The plaintiffs in the suit are:
-- Tri-Cast Ltd. Partnership,
-- Atchison Casting Corp.,
-- Amite Foundry & Machine Inc.,
-- Lancaster Foundry Supply Co.,
-- Port Shell Molding Co.,
-- Kore Mart, Ltd.,
-- Kulp Foundry, Inc.,
-- State Line Foundries Inc.,
-- Tri-Cast Limited Partnership, and
-- Caterpillar, Inc.
The defendants are:
-- Ashland Inc.,
-- Delta Ha Inc.,
-- Huttenes Albertus Chemische Werke Gmbh,
-- Borden Chemical Inc.,
-- Ashland Specialty Chemical Co.,
-- HA International LLC.
In May 2007, the U.S. District Court for the Southern District
of Ohio entered an order certifying a class for the civil
lawsuits.
In December 2007, Ashland and the class plaintiffs agreed to
settle the claims asserted in the litigation for $7.9 million.
The terms of the settlement agreement have been accepted by the
Court, and Ashland has funded the settlement.
The suit is "In Re: Foundry Resins Antitrust Litigation, Case
No. 2:04-md-01638-GLF-MRA," filed with the U.S. District Court
for the Southern District of Ohio.
Representing the plaintiffs is:
Stephen Eric Chappelear, Esq.
Hahn Loeser & Parks
265 E State Street, 14th Floor
Columbus, OH 43215-4224
Phone: 614-221-0240
Fax: 614-233-5148
e-mail: sechappelear@hahnlaw.com
Representing the defendant is:
Michael Karl Yarbrough, Esq.
Frost Brown Todd LLC
One Columbus, 10 W Broad Street, Suite 1000
Columbus, OH 43215-3467
Phone: 614-464-1211
Fax: 614-559-7245
e-mail: myarbrough@fbtlaw.com
BENJAMIN INTL: Recalls Pendants, Candles Posing Lead Exposure
-------------------------------------------------------------
Benjamin International, of Middlebury, Conn., in cooperation
with the U.S. Consumer Product Safety Commission, is recalling
about 460,000 pendants and candle charms.
The company said the recalled pendants and charms contain high
levels of lead. Lead is toxic if ingested by young children and
can cause adverse health effects. No injuries have been
reported.
The recalled pewter pendants were sold in eight collections of
12 pendants each. The pendant collections included Signs of the
Zodiac, Runes, Ritual, Goddess, Chinese Zodiac, and Celtic
Harmonies. The pendants were sold separately and on candles of
various colors and scents.
These recalled pendants and candle charms were manufactured in
Korea and were being sold at gift shops nationwide from January
2002 through November 2007 for between $6 and $8 for the
pendants and between $12 and $15 for the charms with candles.
Pictures of recalled pendants and candle charms are found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08187a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08187b.jpg
Consumers are advised to immediately stop using these
pendants/charms and contact Benjamin International to receive a
free replacement pendant/charm.
For additional information, contact Benjamin International toll-
free at (888) 249-7639 between 9:00 a.m. And 5:00 p.m. ET or
visit the firm's Web site: http://www.benjamininternational.com
CONSTELLATION ENERGY: Faces Suit Over Groundwater Contamination
---------------------------------------------------------------
Constellation Energy Group is facing a class-action lawsuit with
the Circuit Court for Baltimore for allegedly contaminating
water in the neighborhood.
According to the Washington Post, Gayle K. Queen and a group of
lawyers -- Murphy & Falcon, P.A. -- filed a class-action lawsuit
late last year on behalf of residents in Gambrills and Crofton
against Constellation Energy. The lawsuit claims that
Constellation knew for years that the fly ash it was dumping in
a Gambrills surface mine owned by BBSS Inc. was contaminating
the water of nearby homeowners, but failed to warn them.
Ms. Queen says that her husband, David, died of kidney failure
in 2006 because he drank water with traces of arsenic, lead, and
other pollutants. At least five other people have died from
suspicious reasons in the same area, weavers-world.com notes.
Weavers-World notes that for the last 12 years Constellation and
a contractor dumped billions of tons of waste ash from
smokestacks into an unlined former gravel mine pit located close
to the neighborhood where Ms. Queen resides. The waste ash,
also called fly ash, came from Constellation's coal-fired power
plant in Brandon Shores.
The complaint filed with the Baltimore circuit court is a class-
action lawsuit intending to represent dozens of residents
seeking unspecified damages from Constellation in personal
injuries and property value loss.
According to Weavers-World, before reports exposing the
contamination surfaced, Ms. Queen had been considering offers on
her house for up to $750,000. The offers disappeared once the
information about the contamination surfaced.
Tests conducted by Anne Arundel County discovered that 23 wells
tested positive for dangerous metals, including thallium,
arsenic, and cadmium, which are all components of waste ash.
Constellation just recently stopped burying ash in that area,
Weavers-World says.
Ms. Queen's lawsuit alleges that even though Constellation knew
as early as 1999 that the dump was contaminating the water in
the neighborhood, the power company did not warn local
residents. The lawsuit claims that Constellation even purposely
engaged in a campaign to prevent neighbors from knowing about
the waste materials.
County Asks State to Toughen Fly Ash Rules
HometownAnnapolis.com, in an update, reports that the chief of
the county Health Department recently called for tougher air-
quality protection and monitoring of fly ash dump sites.
HometownAnnapolis cites County Health Officer Frances B.
Phillips as saying that new regulations proposed by the Maryland
Department of the Environment does not go far enough to protect
public health and encouraged the agency to "adopt the most
protective regulations."
The MDE is proposing new rules on how fly ash is handled in the
state, HometownAnnapolis notes. The regulations follow a $1-
million fine against Constellation.
HometownAnnapolis recalls that from 1995 until the fall of 2007,
Baltimore Gas and Electric Co., and later Constellation, dumped
around 2.4 million tons of fly ash into the mine, eventually
contaminating groundwater and wells with a bevy of heavy metals,
some carcinogenic.
The new regulations, HometownAnnapolis says, would require fly
ash landfills to have a liner to separate the substance from the
ground, a leachate-collection system to drain water from the
site and a cap to prevent water seepage, which are all measures
designed to prevent groundwater contamination. Currently, fly
ash can be dumped into a site without taking any of those
precautions.
People who live near the fly ash pit have expressed concerns
that they may be inhaling the substance and may be exposed to
harmful chemicals, respiratory problems and some of the same
health risks found with contaminated water.
Ms. Phillips also encouraged the MDE to include a longer
timeframe for monitoring groundwater near filled fly ash sites.
The MDE's new rules would require groundwater monitoring for
five years after a fly ash dump is filled and abandoned. She
said it would be better if this period was extended to 30 years.
Ms. Phillips also asked that the new regulations keep neighbors
of existing and future dump sites better informed about
environmental problems.
Timothy R. Henderson, a lawyer representing BBSS, said that
there were generally no problems with the proposed regulations,
but he would prefer some "clarifications of ambiguous terms and
unintended consequences."
DEUTSCHE BANK: Cleveland Firm Slaps Lawsuit Over Foreclosure
------------------------------------------------------------
The law firm of Novak, Robenalt, and Pavlik has filed a class
action lawsuit on behalf of local homeowners who lost their
homes to foreclosure by Deutsche Bank.
"Most of the homeowners had never even heard of Deutsche Bank,"
Thomas Robenalt, Esq., said. "There was a rush to file, to sell
these mortgages because they were selling them at a profit."
Two Cleveland federal judges have dismissed all pending Deutsche
Bank foreclosures, and Robenalt's firm -- which is also working
with Cohen, Rosenthal, and Kramer -- has filed a class-action
lawsuit. The suit contends that the bank began foreclosure
action before it had legal standing to do so.
Mr. Robenalt believes that homeowners foreclosed upon by
Deutsche Bank may be entitled to recovery of substantial feeds
and damages, and in some cases, where the bank re-purchased the
homes at sheriff's sales, could actually recover their homes.
Representing the plaintiffs is:
Thomas Robenalt, Esq.
Novak, Robenalt & Pavlik, L.L.P.
Skylight OfficeTower
Tower City Center
1660 West 2nd Street
Suite 950
Cleveland, OH 44113-1498
Phone: (216) 781-8700
(877) 851-8736 (Toll Free)
Fax: (216) 781-9227
(216) 348-7081
DIRECTV INC: Faces Calif. Suit Over Fraudulent Sale of Receivers
----------------------------------------------------------------
DirecTV, Inc., is facing a class-action complaint filed on
Feb. 8, 2008, with the U.S. District Court for the Central
District of California alleging that the company cheats its
customers, CourtHouse News Service reports.
The class action complaint seeks to remedy the unfair, unlawful
and fraudulent conduct of the defendants in connection with
their marketing and sale of DirecTV television receivers to the
public, the report says.
According to CourtHouse News, DirecTV fraudulently "sells" TV
receivers through Costco, Best Buy, Circuit City and other
national retailers to customers who find out only after purchase
that they have not bought the receivers, but only "leased" them,
and must pay monthly fees.
Named plaintiff Greg Masters brings the action pursuant to the
provisions of California Code of Civil Procedure Section 382,
and the procedural provisions of Rule 23 of the Federal Rules of
Civil Procedure, on behalf of all persons in the United States
who paid money to DirecTV or a retailer for a DirecTV receiver
in the last four years.
Mr. Masters want the court to rule on:
(a) whether defendants marketed, advertised and sold its
receivers to the class using false, misleading and
deceptive statements or representations;
(b) whether defendants omitted material facts in connection
with their sale/lease of receivers to the class;
(c) whether defendants' conduct as described in the
complaint constitutes a violation of the California
Consumers Legal Remedies Act;
(d) whether defendants' conduct as described in the
complaint constitutes a violation of California
Business and Professions Code Sections 17200 and 17500
et. seq.;
(e) whether defendants' lease is unconscionable;
(f) whether the class is entitled to restitution;
(g) whether the defendants' "lease" should be declared
unenforceable; and
(h) whether plaintiff and the class are entitled to
rescission of the lease.
Mr. Masters request judgment as follows:
-- for an order certifying the class under Rule 23 of the
Federal Rules of Civil Procedure and appointing
plaintiff and his counsel of record to represent the
class;
-- for restitution, disgorgement and/or other equitable
relief as the court deems proper;
-- that pursuant to sections 17203 and 17204 of the
Business and Professions Code, defendants be
permanently enjoined from performing or proposing to
perform any of the aforementioned acts of unfair,
unlawful and fraudulent business practices;
-- for compensatory damages sustained by plaintiff and all
others similarly situated as a result of defendant's
unlawful acts and conduct;
-- for punitive damages pursuant to Civil Code Section
1780(a)(4);
-- declaratory relief that:
(a) any purported lease between the class and
defendants as described in the complaint is void
and unenforceable;
(b) that at the election of individual class members,
the "lease" for the equipment may be rescinded;
(c) class members are the legal owners of the receivers
they purchased; and
(d) any purported arbitration agreement between the
class and defendants is void and unenforceable;
-- for a permanent injunction prohibiting defendants from
engaging in the conduct and practices complained of;
-- for pre-judgment and post-judgment interest;
-- for reasonable attorneys' fees and costs of suit,
including expert witness fees; and
-- for such other and further relief as the court may deem
just and proper.
The suit is "Greg Masters et al. v. DirecTV, Inc., Case No.
CV08-009006 ABC," filed with the U.S. District Court for the
Central District of California.
Representing plaintiffs is:
Mark J. Tamblyn, Esq.
Wexler Toriseva Wallace LLP
1610 Arden Way, Suite 290
Sacramento, California 95815
Phone: (916) 568-1100
e-mail: mjt@wtwlaw.com
GROUP HEALTH: Trial on Suit Over Abusive Doctor Continues
---------------------------------------------------------
As reported in the Class Action Reporter on Feb. 12, 2007, Group
Health Cooperative is facing a lawsuit filed with the ierce
County Superior Court in Washington for hiring and retaining a
doctor who had been charged with sexually abusing his patients.
Group Health employed Dr. Jitesh Chawla, formerly of Providence
St. Peter, at its Tacoma, Olympia, and Federal Way clinics from
September 2005 to March 2006.
The class-action suit, filed by personal injury attorney
Thaddeus Martin, Esq., accuses Group Health of negligence and
ignoring reports of Dr. Chawla's behavior while he worked at
Tacoma Medical Center. The lawsuit alleges that Dr. Chawla was
hired before a background check could be conducted.
According to The Olympian, Dr. Chawla is already facing three
counts of indecent liberties in Thurston County. Each is a
Class B felony punishable to up to 10 years in prison.
The women, The Olympian relates, complained about Dr. Chawla in
December 2005, and he was fired on Dec. 23, 2005.
Dr. Chawla's medical license has been suspended by the state,
based on the allegations that he inappropriately touched the
women and that he "punctured a patient's lung while giving her
an injection and later failed to recognize signs and symptoms
indicating the serious complication," according to a news
release from the state Department of Health.
The Olympian says that the trial for the lawsuit continues.
Representing the plaintiffs is:
Thaddeus P. Martin, Esq.
Thaddeus P. Martin - Attorney At Law
Bank of America Building
4002 Tacoma Mall Blvd., Suite #102
Tacoma, WA 98409
Phone: (253) 682-3420
e-mail: info@thadlaw.com
Representing the defendant is:
Richard Hansen, Esq.
Allen, Hansen & Maybrown, P.S.
One Union Square
Suite 3020
600 University St.
Seattle, WA 98101
Phone: (206) 447-9681
Fax: (206) 447-0839
e-mail: Richard@ahmlawyers.com
HANGZHOU ZHONGCE: Drops Dismissal Motion on Jurisdiction Issue
--------------------------------------------------------------
The Class Action Reporter reported on Nov. 12, 2007, that
Chinese tire company Hangzhou Zhongce Rubber Co. filed a motion
with the U.S. District Court in Camden seeking for the dismissal
of a consumer suit filed against it. Hangzhou Zhongce said the
suit should be dismissed because it does not do business in New
Jersey or anywhere else in the U.S.
The other defendants in the suit are:
-- Tireco,
-- Strategic Import Supply,
-- Omni United USA, Inc.,
-- Oteck International, Inc.,
-- K&D Tire Wholesalers LLC,
-- Robinson Tire,
-- Foreign Tire Sales, Inc.,
-- Reliable Tire Company, and
-- John Does 1-50
A Pennsylvania man, Robert McCulley, who says he was exposed to
danger when he purchased a set of tires made by the company, is
suing Hangzhou Zhongce along with several importers.
Mr. McCulley is seeking class-action status for the lawsuit,
which was filed on June 27, 2007.
Hangzhou Zhongce's products are sold through U.S. distributors
and were subject to a recall last year. A U.S. distributor,
Foreign Tires Sales Inc., of Union, N.J., in August said that it
would recall 255,000 of Hangzhou Zhongce's tires. The National
Highway Traffic Safety Administration ordered the recall after
the distributor said some were made without a safety feature
that prevents treads from separating. Hangzhou Zhongce has said
it found no evidence of structural defects or missing safety
features.
In an update, the Associated Press says that Hangzhou Zhongce
withdrew its motion to dismiss after the judge decided to gather
evidence regarding jurisdiction. The issue is pending.
The suit is "Mcculley v. Hangzhou Zhonhce Rubber Company, Ltd.
et al., Case No. 1:2007-cv-02993," filed with the U.S. District
Court for the District of New Jersey under Judge Joseph H.
Rodriguez with referral to Judge Joel Schneider.
Representing the defendants is:
Mitchell S. Berman, Esq.
Mitchell S. Berman LLC
1179 East Landis Ave.
Vineland, NJ 08362-1120
Phone: (856) 405-0900
e-mail: msb@bermanlawllc.com
Representing the plaintiffs are:
Michael A. Galpern, Esq.
Locks Law Firm, LLC
457 Haddonfield Road
Suite 500
Cherry Hill, N.J. 08002
Phone: (856) 663-8200
e-mail: mgalpern@lockslaw.com
HILLSBOROUGH COUNTY: Faces Suit Over Reservist's Reinstatement
--------------------------------------------------------------
The Department of Justice filed class action against the Clerk
of the Circuit Court in Hillsborough County, Fla., for failing
and refusing to reinstate a U.S. Army Reservist to her position.
The suit was filed with the U.S. District Court for the Middle
District of Florida on Oct. 12, 2007, under the caption,
"Marshall v. Frank, Case No. 8:2007cv01862."
It was filed on behalf of Tracey Y. Marshall, a first sergeant
in the U.S. Army Reserve, alleging violations of the Uniformed
Services Employment and Reemployment Rights Act of 1994.
The complaint alleges that Hillsborough County Clerk Pat Frank
violated USERRA by failing and refusing to reinstate Sgt.
Marshall to her civilian employment position as supervisor of
the Court Clerk II Section.
The Departments complaint alleges that Sgt. Marshall would have
been employed as supervisor of the Court Clerk II Section if her
continuous civilian employment with the Clerk had not been
interrupted by her activation to full-time military duty in
August 2005.
USERRA requires that reservists who are called to active duty be
re-employed by their civilian employers in the same positions
that the reservist would have held had he or she not been called
to active duty.
The complaint also alleges that the Clerk violated USERRA by
transferring Sgt. Marshall from the Courts Felony Department to
its Traffic Department at a lower rate of pay because Sgt.
Marshall took action to enforce a protection afforded her under
USERRA.
A copy of the complaint is available free of charge at:
http://researcharchives.com/t/s?27f8
The suit is "Marshall v. Frank, Case No. 8:2007cv01862," filed
with the U.S. District Court for the Middle District of Florida,
Judge James D. Whittemore.
Representing the plaintiffs are:
William B. Fenton, Esq.
U.S. Dept. of Justice
Civil Rights Division
Employment Litigation Section
950 Pennsylvania Ave., NW
Patrick Henry Bldg., Room 4035
Washington, DC 20530
Phone: (202) 514-9694
Fax: (202) 514-1005
- and -
James R. Klindt, Esq.
U.S. Attorney
Middle District of Florida
400 N. Tampa St., Suite 3200
Tampa, Florida 33602
Phone: (813) 274-6335
Fax: (813) 274-6200
IPO LITIGATION: Defendants Seek Dismissal of N.Y. IPO Litigation
----------------------------------------------------------------
The defendants in "Initial Public Offering Securities
Litigation," have filed a motion to dismiss the six focus cases
in the matter as well as an opposition to the plaintiffs' motion
for class certification.
Case Background
On Oct. 13, 2004, six selected focus cases, among the more than
300 coordinated cases in the IPO allocation litigation, were
certified as class actions. The actions are coordinated for
pretrial purposes before U.S. District Court Judge Shira A.
Scheindlin in the Southern District of New York.
The six focus cases are that against:
1. Corvis Corp.
2. Engage Technologies, Inc.
3. Firepond, Inc.
4. iXL Enterprises, Inc.
5. Sycamore Networks, Inc.
6. VA Linux Corp.
The IPO Litigation consists of 309 class actions involving more
than 300 IPOs marketed between 1998 and 2000. The defendants
include the companies brought public, certain of their officers
and directors and 55 of the investment banks that brought them
public and underwrote various follow-on offerings.
The lawsuits allege that the IPO offerings were manipulated by
the investment banks to artificially inflate the market price of
those securities and to reap excessive compensation and that
their conduct was concealed from the public, in violation of the
federal securities laws. There are also allegations that they
misused their securities analysts to hype the stock.
In June 2006, The Plaintiffs' Executive Committee announced that
a proposed settlement between the issuer defendants and their
directors and officers and the plaintiffs has been structured in
the IPO Securities Litigation which would guarantee at least (or
the first) $1 billion dollars to investors who are class members
from the insurers of the issuers.
Decertification of Focus Cases
On Dec. 5, 2006, the U.S. Court of Appeals for the 2nd Circuit
issued a decision reversing the court's ruling certifying six of
the cases in the consolidated proceedings as class actions.
On Dec. 14, 2006, the court agreed to stay all proceedings,
including consideration of the settlement, pending a decision
from the 2nd Circuit on whether it will hear further argument on
the class certification issue.
In seeking for a review, the plaintiffs argued that the initial
decision by the 2nd U.S. Circuit Court of Appeals adopted
incorrect standards that a district court must apply in
determining whether to grant class certification, according to
Law.com.
They also said the circuit erred in concluding that the
criterion for certification set out in Rule 23(b)(3) of the
Federal Rule of Civil Procedure could not be satisfied with
respect to their class, and argued that a remand was appropriate
to enable the district court to reconsider the class
certification motion under the standards set forth by the
circuit.
Denial to Hear Rehearing of Decertification
On April 6, 2007, the Second Circuit denied the plaintiffs'
petition for rehearing, but allowed them to request that the
district court certify a more limited class. On April 23, 2007,
the plaintiffs requested 30 days to report to the District Court
on how they wish to proceed regarding class certification.
The District Court indicated that a new class definition was a
priority for the issuers' proposed settlement agreement, and met
on May 30, 2007, to discuss this as well as other issues.
During the May 30, 2007 conference, the plaintiffs orally moved
for revised class certification and stated that they will seek
mixed class and merits discovery in advance of their opening
brief on class certification. The plaintiffs also indicated
that they may seek discovery from issuers in cases other than
the six focus cases.
On June 25, 2007, the parties submitted a stipulation to
terminate the settlement, which was granted by Court Order. On
June 26, 2007, plaintiffs served a document request on all
issuer defendants. On June 27, 2007, the Court held a
conference with counsel for all three groups in the case. The
parties agreed that the plaintiffs had until July 31, 2007, to
file any Amended Complaints.
In addition, the Court set the following briefing schedule for
class certification:
* opening briefs due by Sept. 27, 2007,
* responses due by December 21, 2007, and
* reply briefs due by Feb. 15, 2008.
Finally, the plaintiffs had until July 11, 2007, to respond to
the underwriters' motion, joined by the issuers, regarding the
statute of limitations.
There was a conference with the Court to address discovery
issues on July 25, 2007; however, the conference was adjourned
at the request of the parties, and has not been rescheduled.
On July 31, 2007, the plaintiffs requested that the Court extend
the deadline to Aug. 14, 2007, for filing any Amended
Complaints.
On Aug. 14, 2007, the plaintiffs filed amended complaints in the
six focus cases. The amended complaints include a number of
changes, such as changes to the definition of the purported
class of investors, and the elimination of the individual
defendants as defendants.
On Sept. 27, 2007, the plaintiffs filed a motion for class
certification in the six focus cases, and to appoint class
representatives and class counsel in those cases.
The focus case issuers filed motions to dismiss the claims
against them in November 2007 and an opposition to the
plaintiffs' motion for class certification in December 2007.
Both motions are pending.
Issuer Begin Date End Date
------ ---------- --------
724 Solutions, Inc. 01/27/00 12/06/00
Accelerated Networks, Inc. 06/22/00 12/06/00
ACLARA BioSciences, Inc. 03/20/00 12/06/00
Aether Systems, Inc. 10/20/99 12/06/00
AGENCY.COM, Ltd. 12/08/99 12/06/00
Agile Software Corp. 08/20/99 12/06/00
Agilent Technologies, Inc. 11/17/99 12/06/00
AirNet Communications 12/06/99 12/06/00
Airspan Networks, Inc. 07/19/00 12/06/00
Akamai Technologies, Inc. 10/28/99 12/06/00
Alamosa PCS Holdings, Inc. 02/03/00 12/06/00
Alloy Online, Inc. 05/14/99 12/06/00
Antigenics Inc. (named as
Antigenics, Inc.) 02/03/00 12/06/00
Apropos Technology, Inc. 02/17/00 12/06/00
Ariba, Inc. 06/23/99 12/06/00
Ashford.com, Inc. 09/22/99 12/06/00
AsiaInfo Holdings, Inc. 03/03/00 12/06/00
Ask Jeeves, Inc. 07/01/99 12/06/00
Audible, Inc. 07/15/99 12/06/00
Autobytel.com, Inc. 03/26/99 12/06/00
AutoWeb.com, Inc. 03/23/99 12/06/00
Avanex Corporation 02/03/00 12/06/00
AvantGo, Inc. 09/27/00 12/06/00
Avenue A, Inc. 02/28/00 12/06/00
Avici Systems Inc. (named as Avici
Systems, Inc.) 07/27/00 12/06/00
BackWeb Technologies Ltd. 06/07/99 12/06/00
Be Free, Inc. 11/03/99 12/06/00
Blue Martini Software, Inc. 07/24/00 12/06/00
Bookham Technology PLC 04/11/00 12/06/00
Bottomline Technologies, Inc. 02/12/99 12/06/00
Braun Consulting, Inc. 08/10/99 12/06/00
Breakaway Solutions, Inc. 10/05/99 12/06/00
Brocade Communication Systems, Inc. 05/24/99 12/06/00
BSQUARE Corporation 10/19/99 12/06/00
Buy.com, Inc. 02/07/00 12/06/00
CacheFlow, Inc. (now Blue Coat Systems) 11/19/99 12/06/00
Caldera International, Inc. 03/20/00 12/06/00
Calico Commerce, Inc. 10/06/99 12/06/00
Caliper Technologies Corp. (now Caliper
Life Sciences, Inc.) 12/14/99 12/06/00
Capstone Turbine Corp. 06/28/00 12/06/00
Carrier1 International SA 02/23/00 12/06/00
Centra Software, Inc. 02/03/00 12/06/00
chinadotcom corporation 07/12/99 12/06/00
Choice One Communications, Inc. 02/16/00 12/06/00
Chordiant Software, Inc. 02/14/00 12/06/00
Clarent Corporation 06/30/99 12/06/00
CNET Networks (named as successor-in
-interest to Ziff-Davis) 03/30/99 12/06/00
Cobalt Networks, Inc. 11/05/99 12/06/00
Commerce One, Inc. 07/01/99 12/06/00
Concur Technologies, Inc. 12/16/98 12/06/00
Copper Mountain Networks, Inc. 05/12/99 12/06/00
Corio, Inc. 07/21/00 12/06/00
Corvis Corp. 07/27/00 12/06/00
Cosine Communications, Inc. 09/25/00 12/06/00
Covad Communications Group, Inc. 01/21/99 12/06/00
Critical Path, Inc. 03/29/99 12/06/00
CyberSource Corporation 06/23/99 12/06/00
Daleen Technologies, Inc. 09/30/99 12/06/00
Data Return Corp. 10/27/99 12/06/00
deCODE Genetics, Inc. 07/17/00 12/06/00
Delano Technology Corporation 02/09/00 12/06/00
deltathree, Inc. 11/22/99 12/06/00
Dice, Inc. (named as EarthWeb, Inc.) 11/10/98 12/06/00
Digimarc Corporation 12/01/99 12/06/00
Digital Impact, Inc. 11/22/99 12/06/00
Digital Insight Corp. 09/30/99 12/06/00
Digital Island Corporation (now
Cable & Wireless plc) 06/29/99 12/06/00
Digital River, Inc. 08/11/98 12/06/00
DigitalThink, Inc. 02/24/00 12/06/00
Digitas, Inc. 03/13/00 12/06/00
Diversa Corp. 02/14/00 12/06/00
DoubleClick, Inc. 12/11/98 12/06/00
Drugstore.com, Inc. 07/28/99 12/06/00
Epiphany, Inc. 09/21/99 12/06/00
eBenX Inc. 12/09/99 12/06/00
eGain Communications Corp. 09/23/99 12/06/00
El Sitio, Inc. 12/10/99 12/06/00
E-Loan, Inc. 06/28/99 12/06/00
Eloquent, Inc. 02/16/00 12/06/00
Engage Technologies, Inc. 07/20/99 12/06/00
Equinix, Inc. 08/10/00 12/06/00
eToys, Inc. 05/20/99 12/06/00
Evolve Software, Inc. 08/09/00 12/06/00
Exchange Applications, Inc. 12/09/98 12/06/00
EXFO Electro Optical Engineering, Inc. 06/29/00 12/06/00
Expedia, Inc. 11/09/99 12/06/00
Extensity, Inc. 01/26/00 12/06/00
Extreme Networks, Inc. 04/08/99 12/06/00
F5 Networks, Inc. 06/04/99 12/06/00
Fairmarket, Inc. 03/14/00 12/06/00
Fatbrain.com 11/19/98 12/06/00
Finisar Corp. 11/11/99 12/06/00
FirePond, Inc. 02/04/00 12/06/00
FlashNet Communications, Inc. 03/16/99 12/06/00
Focal Communications 07/28/99 12/06/00
Foundry Networks, Inc. 09/27/99 12/06/00
FreeMarkets, Inc. 12/09/99 12/06/00
Gadzoox Networks, Inc. 07/19/99 12/06/00
Gigamedia Ltd. 02/17/00 12/06/00
Global Crossing Ltd. 08/13/98 12/06/00
GlobeSpan, Inc. (now
GlobeSpanVirata, Inc.) 06/23/99 12/06/00
GoTo.com (now Overture Services, Inc.) 06/18/99 12/06/00
GRIC Communications 12/14/99 12/06/00
GT Group Telecom, Inc. 03/09/00 12/06/00
Handspring, Inc. (now PalmOne, Inc.) 06/20/00 12/06/00
High Speed Access Corp. 06/04/99 12/06/00
Hoover's, Inc. 07/20/99 12/06/00
iBasis, Inc. 11/10/99 12/06/00
iBeam Broadcasting Corporation 05/17/00 12/06/00
iManage, Inc. 11/17/99 12/06/00
Immersion Corp. 11/12/99 12/06/00
Impsat Fiber Networks, Inc. 01/31/00 12/06/00
Informatica Corp. 04/28/99 12/06/00
InforMax, Inc. (now Invitrogen Corp.) 10/02/00 12/06/00
Inforte Corp. 02/17/00 12/06/00
Inrange Technologies Corp. 09/21/00 12/06/00
InsWeb Corp. 07/22/99 12/06/00
Integrated Information Systems, Inc. 03/17/00 12/06/00
Integrated Telecom Express, Inc. 08/18/00 12/06/00
InterNAP Network Services Corporation 09/29/99 12/06/00
Internet Capital Group 08/04/99 12/06/00
Internet Initiative Japan, Inc. 08/03/99 12/06/00
Intersil Holding Corp. 02/24/00 12/06/00
InterTrust Technologies Corp. 10/26/99 12/06/00
interWAVE Communications
International Ltd. 01/31/00 12/06/00
Interwoven, Inc. 10/08/99 12/06/00
Intraware, Inc. 02/25/99 12/06/00
iPrint.com, Inc. (now iPrint
Technologies, Inc.) 03/07/00 12/06/00
ITXC Corporation 09/27/99 12/06/00
iVillage, Inc. 03/18/99 12/06/00
iXL Enterprises, Inc. 06/02/99 12/06/00
Jazztel PLC 12/08/99 12/06/00
JNI Corp. 10/26/99 12/06/00
Juniper Networks Inc. 06/24/99 12/06/00
Kana Software, Inc. 09/21/99 12/06/00
Keynote Systems Inc. 09/24/99 12/06/00
Korea Thrunet Co. Ltd. 09/16/99 12/06/00
Lante Corporation 02/10/00 12/06/00
Latitude Communications, Inc. 05/06/99 12/06/00
Lexent Inc. 07/27/00 12/06/00
Liberate Technologies (named as
Liberate Technologies, Inc.) 07/27/99 12/06/00
Lionbridge Technologies, Inc. 08/20/99 12/06/00
Liquid Audio, Inc. 07/08/99 12/06/00
Loudeye Technologies, Inc. 03/15/00 12/06/00
Manufacturers Services Ltd. 06/22/00 12/06/00
Marimba, Inc. 04/29/99 12/06/00
MarketWatch.com, Inc. 01/15/99 12/06/00
Martha Stewart Living
Omnimedia, Inc. 10/18/99 12/06/00
Marvell Technology Group, Ltd. 06/27/00 12/06/00
MatrixOne, Inc. 03/01/00 12/06/00
Maxygen, Inc. 12/15/99 12/06/00
McAfee.com Corp. 12/01/99 12/06/00
McData Corporation 08/09/00 12/06/00
MCK Communications, Inc. 10/22/99 12/06/00
Mediaplex, Inc. 11/19/99 12/06/00
MedicaLogic, Inc. 12/10/99 12/06/00
MetaSolv Software, Inc. 11/17/99 12/06/00
Metawave Communications Corp. 04/26/00 12/06/00
Microtune, Inc. 08/04/00 12/06/00
Modem Media, Inc. 02/05/99 12/06/00
MP3.com, Inc. 07/21/99 12/06/00
Multex.com, Inc. 03/17/99 12/06/00
NaviSite, Inc. 10/22/99 12/06/00
Neoforma.com, Inc. 01/24/00 12/06/00
Net Perceptions, Inc. 04/22/99 12/06/00
Net2000 Communications, Inc. 03/06/00 12/06/00
Net2Phone, Inc. 07/29/99 12/06/00
Netcentives, Inc. 10/13/99 12/06/00
NetRatings, Inc. 12/08/99 12/06/00
Netro Corporation (now SR Telecom Inc.) 08/18/99 12/06/00
NetSilicon, Inc. 09/15/99 12/06/00
NetSolve, Inc. 09/29/99 12/06/00
Network Engines Inc. 07/13/00 12/06/00
Network Plus Corporation 06/29/99 12/06/00
NetZero, Inc. 09/23/99 12/06/00
New Focus, Inc. 05/17/00 12/06/00
Next Level Communications 11/09/99 12/06/00
NextCard, Inc. 05/14/99 12/06/00
Nextel Partners, Inc. 02/22/00 12/06/00
Niku Corp. 02/28/00 12/06/00
Northpoint Communications Group Inc. 05/05/99 12/06/00
Nuance Communications, Inc. 04/12/00 12/06/00
OmniSky Corp. 09/20/00 12/06/00
OmniVision Technologies, Inc. 07/14/00 12/06/00
ON Semiconductor Corporation (named as
ON Semiconductor Corp.) 04/27/00 12/06/00
ONI Systems Corp. (now CIENA Corp.) 06/01/00 12/06/00
Onvia.com, Inc. 02/29/00 12/06/00
Onyx Software Corp. 02/11/99 12/06/00
OpenTV Corp. 11/23/99 12/06/00
Openwave Systems Inc. (named as Openwave
Systems, Inc.) (f/k/a Phone.com, Inc.)06/11/99 12/06/00
Oplink Communications, Inc. 10/03/00 12/06/00
Optio Software, Inc. 12/15/99 12/06/00
OraPharma, Inc. 03/09/00 12/06/00
Oratec Interventions, Inc. 04/04/00 12/06/00
Orchid Biosciences, Inc. 05/04/00 12/06/00
Organic, Inc. 02/09/00 12/06/00
OTG Software, Inc. 03/10/00 12/06/00
Pacific Internet Ltd. 02/05/99 12/06/00
Packeteer, Inc. 07/27/99 12/06/00
Pac-West Telecomm, Inc. 11/03/99 12/06/00
Palm Inc. 03/01/00 12/06/00
Paradyne Networks, Inc. 07/15/99 12/06/00
pcOrder.com, Inc. (named as PCOrder.com,
Inc.) (now Trilogy Software, Inc.) 02/25/99 12/06/00
Perot Systems Corp. 02/01/99 12/06/00
PlanetRX.com 10/06/99 12/06/00
Portal Software, Inc. 05/05/99 12/06/00
Predictive Systems, Inc. 10/27/99 12/06/00
Preview Systems, Inc. 12/07/99 12/06/00
priceline.com Inc. (named as
Priceline.com, Inc.) 03/30/99 12/06/00
Primus Knowledge Solutions Inc. 07/01/99 12/06/00
Prodigy Communications Inc. 02/10/99 12/06/00
Proton Energy Systems, Inc. 09/28/00 12/06/00
PSi Technologies Holdings, Inc. 03/16/00 12/06/00
PurchasePro.com, Inc. 09/13/99 12/06/00
Quest Software, Inc. 08/13/99 12/06/00
Quicklogic Corp. 10/14/99 12/06/00
Radio One, Inc. 05/06/99 12/06/00
Radio Unica Communications Corp. 10/19/99 12/06/00
Radware Ltd. 09/30/99 12/06/00
Ravisent Technologies, Inc. 07/16/99 12/06/00
Razorfish, Inc. 04/26/99 12/06/00
Red Hat, Inc. 08/11/99 12/06/00
Redback Networks, Inc. 05/17/99 12/06/00
Regent Communications Inc. 01/24/00 12/06/00
Register.com, Inc. 03/02/00 12/06/00
Repeater Technologies, Inc. 08/08/00 12/06/00
Resonate, Inc. 08/02/00 12/06/00
Retek Inc. 11/17/99 12/06/00
Rhythms NetConnections, Inc. 04/06/99 12/06/00
Rowecom, Inc. 03/09/99 12/06/00
Saba Software, Inc. 04/06/00 12/06/00
Satyam Infoway, Inc. 10/18/99 12/06/00
SciQuest.com, Inc. 11/19/99 12/06/00
Selectica, Inc. 03/09/00 12/06/00
Sequenom, Inc. 01/31/00 12/06/00
Silicon Image, Inc. 10/05/99 12/06/00
Silicon Laboratories, Inc. 03/24/00 12/06/00
SilverStream Software, Inc. 08/16/99 12/06/00
Sirenza Microdevices, Inc. (f/k/a
Stanford Microdevices) 05/24/00 12/06/00
SmartDisk Corporation 10/05/99 12/06/00
SMTC Corp. 07/20/00 12/06/00
SonicWALL, Inc. 11/11/99 12/06/00
Sonus Networks, Inc. 05/24/00 12/06/00
Spanish Broadcasting System, Inc. 10/27/99 12/06/00
Stamps.com, Inc. 06/24/99 12/06/00
StarMedia Network, Inc. (now
CycleLogic, Inc.) 05/25/99 12/06/00
StorageNetworks, Inc. 06/29/00 12/06/00
Stratos Lightwave, Inc. (now known as
Stratos International, Inc.) 06/26/00 12/06/00
Support.com, Inc. (now SupportSoft, Inc.)07/18/00 12/06/00
Switchboard, Inc. 03/02/00 12/06/00
Sycamore Networks, Inc. 10/21/99 12/06/00
Talarian Corporation 07/20/00 12/06/00
Telaxis Communications Corp. (now YDI
Wireless, Inc.) 02/01/00 12/06/00
TeleCommunication Systems Inc. 08/07/00 12/06/00
TeleCorp PCS, Inc. 11/23/99 12/06/00
TenFold Corp. 05/21/99 12/06/00
Terra Networks, S.A. 11/15/99 12/06/00
TheGlobe.com, Inc. 11/12/98 12/06/00
TheStreet.com, Inc. 05/10/99 12/06/00
TIBCO Software, Inc. 07/13/99 12/06/00
Ticketmaster Online-CitySearch, Inc. (now
Ticketmaster) 12/02/98 12/06/00
Tickets.com, Inc. 11/03/99 12/06/00
Tippingpoint Technologies, Inc. 03/17/00 12/06/00
TiVo, Inc. 09/29/99 12/06/00
Transmeta Corporation (named as
Transmeta Corp.) 11/06/00 12/06/00
Triton Network Systems, Inc. 07/12/00 12/06/00
Turnstone Systems, Inc. 01/31/00 12/06/00
Tut Systems, Inc. 01/29/99 12/06/00
UAXS Global Holdings Inc. (now Universal
Access Global Holdings Inc.) 03/16/00 12/06/00
United Pan-European Communications NV 02/11/99 12/06/00
Usinternetworking, Inc. 04/08/99 12/06/00
UTStarcom, Inc. 03/02/00 12/06/00
VA Linux Systems Inc. (now VA Software
Corp.) 12/09/99 12/06/00
ValiCert, Inc. 07/27/00 12/06/00
Valley Media, Inc. 03/26/99 12/06/00
Value America, Inc. 04/08/99 12/06/00
Variagenics, Inc. 07/21/00 12/06/00
Ventro Corporation (now NexPrise, Inc.) 07/26/99 12/06/00
Verado Holdings, Inc. (f/k/a First World
Comm. Inc.) 03/08/00 12/06/00
VerticalNet, Inc. 02/10/99 12/06/00
VIA Net.Works, Inc. 02/11/00 12/06/00
Viador, Inc. 10/25/99 12/06/00
Viant Corporation 06/17/99 12/06/00
Vicinity Corporation 02/09/00 12/06/00
Vignette Corp. 02/19/99 12/06/00
Virage, Inc. 06/29/00 12/06/00
Vitria Technology, Inc. 09/16/99 12/06/00
Vixel Corp. (now Emulex Corp.) 10/01/99 12/06/00
WebMD Corporation 02/10/99 12/06/00
webMethods, Inc. (named as WebMethods,
Inc.) 02/10/00 12/06/00
Webvan Group, Inc. 11/04/99 12/06/00
Wink Communications 08/19/99 12/06/00
Wireless Facilities, Inc. 11/04/99 12/06/00
Women.com Networks, Inc. 10/14/99 12/06/00
World Wrestling Federation Entertainment,
Inc. 10/18/99 12/06/00
XCare.net, Inc. (now Quovadx, Inc.) 02/09/00 12/06/00
Xpedior, Inc. 12/15/99 12/06/00
Z-Tel Technologies, Inc. 12/15/99 12/06/00
For more details, visit http://www.iposecuritieslitigation.com/.
KIA MOTORS: Superior Court Upholds $4.1M Fees in Sephia Suit
------------------------------------------------------------
The Superior Court of Pennsylvania has upheld $4.1 million in
plaintiffs' attorney fees awarded by a Philadelphia judge in a
suit over Kia Motors America, Inc., sedans with defective
braking systems, Amaris Elliott-Engel, The Legal Intelligencer
reports.
Case Background
In 2004, the Philadelphia law firm Donovan Searles revealed that
the Philadelphia Court of Common Pleas, in the case of "Samuel-
Bassett v. Kia Motors America, Inc., No. 2199, Jan. Term 2001,"
ordered that Notice of Pendency of Class Action be provided to
all residents of the Commonwealth of Pennsylvania who purchased
or leased a model year 1997, 1998, 1999 or 2000 Kia Sephia
between Jan. 17, 1997, and Jan. 17, 2001 (Class Action
Reporter, Nov. 22, 2004).
In the suit, the plaintiffs claimed the Sephia 1997, 1998, 1999,
and 2000 model automobiles have defects in their braking system.
The plaintiffs claim that this is a breach of warranty and a
violation of the Magnuson-Moss Warranty Improvement Act.
The plaintiffs had sought to recover money damages from
defendant, which may include the costs of repairs and
compensation for the reduction in vehicle value.
In May 2005, a jury awarded $5,641,200 or $600 a piece, to 9,402
class members (Class Action Reporter, June 2, 2005). The
verdict was rendered following a two-week trial in which the
jurors found that there was a common defective design of the
brake system of the 1995-2001 Kia Sephia.
The Philadelphia Court of Common Pleas then confirmed the jury's
verdict on behalf of a class of 9,402 Pennsylvania consumers
(Class Action Reporter, Jan. 2, 2007). The case then proceeded
to the appellate court.
Superior Court's Ruling
In Oct. 2007, the Superior Court of Pennsylvania upheld the
verdict in a nonprecedential decision (Class Action Reporter,
Oct 31, 2007). According to the report, the court made these
opinions in response to Kia Motors' arguments:
(1) Kia argued that some of the class members might not be
individually entitled to an award and that it was in error
to assess $600 for each class member.
The court said class representative Shamell Samuel-Bassett's
total cost for brake repairs during the warranty was
$596.16, and it was reasonable to multiply $600 for the
9,402 class members to reach the verdict of $5,641,200.
"Regardless of whether an individual class member had his or
her brakes repaired under warranty by Kia, all class members
were entitled to have good brakes on their cars that did not
require repeated trips to the dealership for replacement in
order to avoid brake failure," the opinion said.
(2) Kia argued that the class was improperly certified because
it was not certain that each class member relied upon the
warranty or that Kia refused to conduct repairs, the opinion
said.
The Superior Court said the class was properly certified
because trial evidence demonstrated that the 1995-2001 Kia
Sephias had a defective brake system design, that expert
testimony would be needed to prove each claim and that it
would strain the court system to litigate each claim
individually.
(3) Kia also argued that Judge Mark I. Bernstein erred in his
jury instructions, but the Superior Court noted that Kia
either "won on the issue or failed to object to the charge."
(4) The Superior Court also ruled that Judge Bernstein must
issue a supplemental 1925(a) opinion to support why he
awarded $4.125 million in counsel fees and $267,513 in
expenses in January 2006.
The Superior Court said both parties would have 30 days
after Judge Bernstein issues his 1925(a) opinion to file
supplemental briefs in the appellate court.
(5) The appellate court also rejected the plaintiff cross-appeal
of Judge Bernstein's order denying class certification under
the Unfair Trade Practices and Consumer Protection Law.
Judge Bernstein ruled that Samuel-Bassett met the requirement
for class certification under the commonwealth's rules of civil
procedure for her breach of warranty claims but not her consumer
protection claim.
He found that Samuel-Bassett had met all the requirements of
class certification under Pennsylvania's rules of civil
procedure for the breach of warranty claims but not consumer
protection claims because the commonality requirement was not
met and there were not questions of law or fact common to the
individual class members.
The Superior Court panel -- comprised of Judges John T. Bender,
Susan Peikes Gantman and Richard B. Klein -- said in its recent
decision that there was no palpable abuse of discretion by Judge
Bernstein in his award decision and that it should be upheld.
The panel echoed Judge Bernstein's reasoning that the plaintiffs
attorneys' award was reasonable considering the rates the
defense counsel charged.
"As noted by the trial court, the time records produced by
defense counsel, although incomplete, demonstrated that defense
counsel had expended over 7,100 hours defending the case, and
partners had billed at rates ranging from $560 to $595 per hour,
higher than the rates requested by plaintiffs' counsel," the
unpublished memorandum opinion said, as reported by The Legal
Intelligencer.
The panel also echoed Judge Bernstein's dismissal of the chief
defense witness used to challenge the plaintiffs attorney fees
as dishonest: John Marquess of Legal Cost Control Inc., a
Haddonfield, N.J., firm that helps entities reduce and manage
legal and accounting fees.
Mr. Marquess said that the plaintiffs' fee request should be
reduced by 86 percent to $662,667.15 for a case that was
litigated for five years, during which it was removed to federal
court, remanded to state court and tried, The Legal
Intelligencer previously reported.
"We conclude that the record supports Judge Bernstein's
findings. We need not repeat the detailed findings of Judge
Bernstein explaining why he did not credit Mr. Marquess'
testimony," the memorandum opinion said. "Just as an example,
Mr. Marquess refused to concede that Michael D. Donovan,
Esquire, plaintiffs' lead counsel from the inception of the
case, should receive a fee for his trial work. It goes without
saying that someone has to be in court to try the case and
should be compensated for the time and work expended."
"The Superior Court's decision was well-reasoned as was the
underlying decision of Judge Bernstein," Donovan of Donovan
Searles said told The Legal Intelligencer.
The suit is "Samuel-Bassett v. Kia Motors America Inc."
Trial counsel for plaintiffs and the class of Pennsylvania
consumers are:
Michael D. Donovan, Esq.
Donovan Searles, LLC
Phone: +1-215-732-6067 or
Toll- +1-800-619-1677
Fax: +1-215-732-8060
e-mail: mdonovan@donovansearles.com
Alan M. Feldman, Esq.
Feldman, Shepherd, Wohlgelernter, Tanner & Weinstock,
1845 Walnut Street, 25th Floor, Philadelphia, PA 19103
Phone: 215.567.8300 or 1.888.275.0296
Fax: 215.567.8333
e-mail: afeldman@feldmanshepherd.com
- and -
James A. Francis, Esq.
Francis & Mailman, P.C.
19th Floor Land Title
Building, 100 South Broad St.
Philadelphia, PA 19110,
Phone: (215) 735-8600
Fax: (215) 940-8000
e-mail: jfrancis@consumerlawfirm.com
LUMENIS, LTD: Seeks Shareholders' OK for Securities Suit Deal
-------------------------------------------------------------
Lumenis(R) Ltd. has scheduled a special general meeting of
shareholders to seek approval and authorization, in accordance
with the Israeli Companies Law, of a proposed settlement of the
securities class action litigation that has been pending against
the Company in the federal court in New York since 2002.
The Company (then known as ESC Medical Systems, Ltd.) acquired
the assets of the Coherent Medical Group (CMG) on April 30,
2001, for the fraudulent purpose of taking very large one-time
charges and write-downs claimed to be associated with the
acquisition but which were really intended to write down
receivables or other assets which should have been written-off
or written-down earlier.
In 2002, Lumenis faced a consolidated complaint alleging a class
period from October 2, 2000 to May 16, 2002, and alleging the
Company's financial statements, and the related press releases
announcing or pre- announcing such results, from the third
quarter of FY 2000 to the first quarter of FY 2002, overstated
revenues for the applicable quarter due to alleged violations of
GAAP.
The suit further alleged improper revenue recognition on sales
to distributors which the CAC characterizes as channel stuffing.
It also alleged that the Company fraudulently overstated the
progress or success of ongoing efforts to integrate CMG with the
Company, and the benefits or synergies expected to be achieved
by that combination.
In 2004, Lumenis planned to file a motion to dismiss the
consolidated class action, filed in the United States District
Court for the Southern District of New York, on behalf of
purchasers of its securities, for failure to state a claim,
failure to plead fraud with particularity as required by the
Private Securities Litigation Reform Act of 1995 and Rule 9(b)
of the Federal Rules of Civil Procedure, and on the grounds that
certain of the claims asserted are barred by the applicable
statute of limitations (Class Action Reporter, Dec. 4, 2003).
The lawsuit named as defendants the Company, and:
(1) Prof. Jacob A. Frenkel (Chairman, Board of Directors)
(2) Yacha Sutton, (former Exec. Vice President)
(3) Sagi Genger (former Business Operations Officer), and,
(4) Asif Adil (acting Chief Financial Officer)
Under the terms of the proposed settlement, which has been
agreed to in principle by Lumenis and the lead plaintiffs on
behalf of the class, a total of $20.1 million would be
contributed to a settlement fund for the benefit of the class.
While Lumenis itself would contribute a portion of this fund,
the major portion would be paid on behalf of the defendants by
the Company's insurers.
Assuming shareholder approval is forthcoming, the settlement
will still be subject to a number of conditions, including the
execution and preliminary court approval of a definitive
stipulation of settlement, and final court approval after there
has been notice to the members of the class and a hearing as to
the fairness of the proposed settlement.
If the settlement is finally approved by the court, the class
action litigation will be dismissed with prejudice against
Lumenis and the former Lumenis officers and directors who have
been named as defendants.
Lumenis is Israel's largest medical device company with more
than 1,000 employees worldwide. The Company invests heavily in
R&D and holds a leading position in the markets in which it
serves. Lumenis has over 250 patents worldwide, over 75 FDA
clearances, worldwide presence in over 100 countries, and an
installed base of over 70,000 systems. In December 2006, a group
led by a private equity consortium LM Partners LP and Ofer Hi-
Tech Group invested approximately $150 million in the Company.
For more information, contact:
Michelle Maydan
Director of Corporate Communications
Phone: 1-866-569-0597 or +972-4-959-9004
e-mail: mmaydan@lumenis.com
MET-RX USA: No Trial Set for Calif. Prohormone Supplements Suit
---------------------------------------------------------------
No trial date has been set for a class action pending in
California against MET-Rx USA, Inc., an indirect subsidiary of
Rexall Sundown, Inc., in connection with the advertising and
marketing of certain pro-hormone supplements.
On July 25, 2002, a putative consumer class-action was filed
with the California state court against MET-Rx, claiming that
the advertising and marketing of certain pro-hormone supplements
were false and misleading, or alternatively, that the pro-
hormone products contained ingredients that were controlled
substances under California law. The plaintiffs seek equitable
and monetary relief.
On June 18, 2004, the case was coordinated with several other
class actions brought against other companies relating to the
sale of products containing androstenediol, one of the pro-
hormones contained in MET-Rx products. The coordinated
proceedings have been assigned to a coordination judge for
further pretrial proceedings.
The plaintiff has moved for class certification and the motion
is currently pending. MET-Rx recently filed a motion to dismiss
the lawsuit based upon the plaintiffs' failure to prosecute the
case diligently.
No trial date has been set, according to the NBTY, Inc.'s
Feb. 8, 2008 form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Dec. 31, 2007.
MET-RX USA: N.J. Suit Over Prohormone Supplements Remains Stayed
----------------------------------------------------------------
A class action pending in New Jersey against MET-Rx USA, Inc.,
an indirect subsidiary of Rexall Sundown, Inc. in connection
with the advertising and marketing of certain prohormone
supplements has been stayed.
In March 2004, a putative class action was filed in New Jersey
against MET-Rx, claiming that the advertising and marketing of
certain prohormone supplements were false and misleading and
that plaintiff and the putative class of New Jersey purchasers
of these products were entitled to damages and injunctive
relief.
Because these allegations are virtually identical to allegations
made in a putative nationwide class-action previously filed in
California, the company moved to dismiss or stay the New Jersey
action pending the outcome of the California action.
The motion was granted, and the New Jersey action is stayed at
this time, according to the NBTY, Inc.'s Feb. 8, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Dec. 31, 2007.
NAVARRE CORP: Minn. Judge to Give Final Approval for Settlement
---------------------------------------------------------------
The Magistrate Judge of the U.S. District Court for the District
of Minnesota indicated that she would recommend the Court to
grant final approval to a settlement of a consolidated
securities fraud class action filed against Navarre Corp. and
certain of its officers and directors.
Several purported class-action lawsuits were commenced in 2005
by various plaintiffs against Navarre Corp. and certain of its
current and former officers and directors with the U.S. District
Court for the District of Minnesota.
The actions are identified as:
-- "AVIVA Partners, Ltd. v. Navarre Corp., et al., Case
No. 05-1151 (PAM/RLE);"
-- "Vivian Oh v. Navarre Corp., et al., Case No. 05-01211
(MJD/JGL);" and
-- "Matthew Grabler v. Navarre Corp., et al., Case No. 05-
1260 (DWF/JSM)."
The plaintiffs alleged violations of Sec. 10(b) of the U.S.
Securities Exchange Act of 1934, and Rule 10(b)(5), promulgated
under the Act, and as to the individual defendants only,
violation of Sec. 20(a) of the Act.
The plaintiffs sought certification of the actions as a class
action lawsuit, compensatory but unspecified damages allegedly
sustained as a result of the alleged wrongdoing, plus costs,
counsel fees and experts fees.
By Memorandum Opinion and Order dated December 12, 2005, the
Court appointed "The Pension Group" -- comprised of the
Operating Engineers Construction Industry and