C L A S S A C T I O N R E P O R T E R
Wednesday, April 16, 2008, Vol. 10, No. 75
Headlines
ABM INDUSTRIES: Faces Calif. Lawsuits Over Wage, Hour Violations
ABM INDUSTRIES: Court Approves $1.4M Settlement in "Augustus II"
ABM INDUSTRIES: Calif. Court Allows Discovery in "Villacres"
ABM INDUSTRIES: Mid-2008 Hearing Set for 'Augustus I" Litigation
ABM INDUSTRIES: Calif. Court Certifies FLSA Claims in "Batiz"
ANTHEM HEALTH: PTs' Antitrust Lawsuit in Maine Moves Forward
BABY BOTTLE MANUFACTURERS: Continues to Face BPA-Related Suit
BNSF RAILWAY: Okla. Residents Sue Over Toxic Waste from Smelter
CASEY'S GENERAL: Discovery to Begin in Kansas Suit Over Hot Fuel
CASEY'S GENERAL: Appeals Ruling in Iowa Assistant Managers' Suit
CASEY'S GENERAL: Seeks Nixing of Store Employees' Suit in Iowa
DGA: Settles Levies Lawsuit Filed by Non-Members
DYNAMEX INC: No Reply Brief Filed in Appeal of Calf. Labor Suit
DYNAMEX INC: Faces N.Y. Suit Over Misclassification of Drivers
FELTEX CARPETS: Few Shareholders Opt Out of Class Action
FLORIDA: Broward County Canker Lawsuit in Jury Selection Stage
FREEPORT-MCMORAN: Sued in OK Over Lead and Arsenic Contamination
GOODYEAR TIRE: Judge Wants More Info in VEBA Trust Lawsuit
HEWLETT-PACKARD: June 2008 Trial Set for CA "Smart Chips" Suit
HEWLETT-PACKARD: December 2009 Trial Set for "Rich" Litigation
HEWLETT PACKARD: Appeals Remanding of "Digwamaje" to N.Y. Court
IPO LITIGATION: Reply Briefs Supporting Dismissal Bid Filed
MF GLOBAL: Lead Plaintiff Appointment Deadline is on May 9
MONMOUTH TOYOTA: Faces N.J. Lawsuit Over Alleged Customer Fraud
NEW YORK: Naturalization Process Must Be Expedited, Court Says
PLANET TOYS: ADAO Files 2 Suits Over Asbestos-Tainted CSI Toys
QUEST CHEROKEE: Discovery Ongoing in Kansas Suit Over Royalties
SKECHERS USA: 9th Circuit Affirms Dismissal of Securities Suit
THOR INDUSTRIES: Faces Suits Over Contaminated FEMA Trailers
TOLL BROTHERS: Faces Securities Fraud Lawsuits in Pa. and Calif.
* Subprime Litigation Fuels Increase in Class Action Lawsuits
New Securities Fraud Cases
AGRIA CORP: Brower Piven Files Securities Suit in New York
ARTHROCARE CORP: Brualdi Law Firm Files FL Securities Fraud Suit
FIRST MARBLEHEAD: Federman & Sherwood Files MA Securities Suit
FIRST MARBLEHEAD: Paskowitz Files Securities Fraud Suit in Mass.
FORCE PROTECTION: Brower Piven Files Securities Fraud Suit in SC
INVERNESS MEDICAL: Brower Piven Files Ma. Securities Lawsuit
ISTAR FINANCIAL: Coughlin Stoia Files N.Y. Securities Fraud Suit
MICHAEL BAKER: Spector Roseman Commences Pa. Securities Suit
MONEYGRAM INTL: Brualdi Law Firm Files MN Securities Fraud Suit
TETRA TECHNOLOGIES: Felgoise Files Securities Suit in Texas
WELLS FARGO: Girard Gibbs Files Securities Fraud Suit in Calif.
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
* Online Teleconferences
*********
ABM INDUSTRIES: Faces Calif. Lawsuits Over Wage, Hour Violations
----------------------------------------------------------------
ABM Industries, Inc., is facing several purported class action
suits related to alleged violations of federal or California
wage-and-hour laws, according to the company's March 10, 2008
Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Jan. 31, 2008.
The suits are:
-- the recently consolidated cases of "Bucio/Morales and
Martinez/Lopez v. ABM Janitorial Services," filed on
April 7, 2006, with the Superior Court of California,
County of San Francisco;
-- the consolidated cases of "Diaz/Morales/Reyes v. Ampco
System Parking" filed on Dec. 5, 2006, with L.A.
Superior Ct.;
-- the case of "Castellanos v. ABM Industries," filed on
April 5, 2007, with the U.S. District Court for the
Central District of California; and
-- the case of "Chen v. Ampco System Parking and ABM
Industries Incorporated" filed on March 6, 2008 with
the U.S. District Court of for the Southern District
of California.
The named plaintiffs in these lawsuits are current or former
employees of ABM subsidiaries who allege, among other things,
that they were required to work "off the clock," were not paid
for all overtime, were not provided work breaks or other
benefits, and received pay stubs not conforming to California
law.
In all cases, the plaintiffs generally seek unspecified monetary
damages, injunctive relief or both.
In addition, the plaintiffs allege violations of the Fair Labor
Standards Act and certain California wage and hour laws.
ABM Industries, Inc. -- http://www.abm.com-- is a facility
services contractor in the U.S. ABM and its subsidiaries
provide janitorial, parking, security, engineering and lighting
services for commercial, industrial, institutional and retail
facilities in hundreds of cities throughout the U.S. and in
British Columbia, Canada. The Company operates through five
segments: Janitorial, Parking, Security, Engineering and
Lighting.
ABM INDUSTRIES: Court Approves $1.4M Settlement in "Augustus II"
----------------------------------------------------------------
The Los Angeles Superior Court in California approved the
$1.4-million settlement deal in the matter, "Augustus and
Hernandez v. American Commercial Security Services (ACCS)" or
Augustus II, a purported class action lawsuit related to alleged
violations of federal or California wage-and-hour laws that
names a subsidiary of ABM Industries, Inc., as a defendant.
The named plaintiffs in the suit, which was filed on Feb. 23,
2006, are current or former employees of ABM subsidiaries who
allege, among other things, that they were required to work "off
the clock," were not paid for all overtime, were not provided
work breaks or other benefits, and received pay stubs not
conforming to California law.
They generally seek unspecified monetary damages, injunctive
relief or both.
On April 25, 2007, a settlement in the amount of $1.4 million
was reached in Augustus II. The settlement was approved by the
court on a final basis on Feb. 29, 2008, according to the
company's March 10, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
Jan. 31, 2008.
ABM Industries, Inc. -- http://www.abm.com-- is a facility
services contractor in the U.S. ABM and its subsidiaries
provide janitorial, parking, security, engineering and lighting
services for commercial, industrial, institutional and retail
facilities in hundreds of cities throughout the U.S. and in
British Columbia, Canada. The Company operates through five
segments: Janitorial, Parking, Security, Engineering and
Lighting.
ABM INDUSTRIES: Calif. Court Allows Discovery in "Villacres"
------------------------------------------------------------
The U.S. District Court for the Central District of California
is permitting discovery to begin in the matter, "Villacres v.
ABM Security," which was filed on Aug 15, 2007, against a
subsidiary of ABM Industries, Inc.
The named plaintiffs in the suit are current or former employees
of ABM subsidiaries who allege, among other things, that they
were required to work "off the clock," were not paid for all
overtime, were not provided work breaks or other benefits, and
received pay stubs not conforming to California law.
They generally seek unspecified monetary damages, injunctive
relief or both.
Although the Villacres class originally claimed numerous wage
and hour violations under California law (including failure to
pay overtime, failure to pay wages timely, failure to provide
meal and rest breaks, the failure to provide proper wage
statements to employees, and engaging in unfair business
practices), the plaintiffs have since requested leave to file a
Second Amended Complaint, which would include only the claim
related to the provision of improper wage statements to
employees.
The hearing on class certification in "Villacres" was Feb. 25,
2008. During the hearing, the court tentatively stated that it
likely lacked jurisdiction over the case, as, under the Class
Action Fairness Act, over two-thirds of the class likely reside
in California, the principal place of business of the employer
defendant, thereby not creating the necessary diversity
jurisdiction.
The court is permitting discovery on the issue and further
briefing was due on April 10, 2008, according to the company's
March 10, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Jan. 31, 2008.
ABM Industries, Inc. -- http://www.abm.com-- is a facility
services contractor in the U.S. ABM and its subsidiaries
provide janitorial, parking, security, engineering and lighting
services for commercial, industrial, institutional and retail
facilities in hundreds of cities throughout the U.S. and in
British Columbia, Canada. The Company operates through five
segments: Janitorial, Parking, Security, Engineering and
Lighting.
ABM INDUSTRIES: Mid-2008 Hearing Set for 'Augustus I" Litigation
----------------------------------------------------------------
A mid-2008 hearing is set for the purported class action suit
entitled, "Augustus, Hall and Davis v. American Commercial
Security Services (ACSS)," which names a subsidiary of ABM
Industries, Inc., as a defendant.
The consolidated cases of "Augustus, Hall and Davis v. ACSS," or
Augustus I, was filed on July 12, 2005, with n the Superior
Court of California, Los Angeles County.
The named plaintiffs in the suit are current or former employees
of ABM subsidiaries who allege, among other things, that they
were required to work "off the clock," were not paid for all
overtime, were not provided work breaks or other benefits, and
received pay stubs not conforming to California law.
They generally seek unspecified monetary damages, injunctive
relief or both.
The hearing on class certification in Augustus I is set for mid-
2008, according to the company's March 10, 2008 Form 10-f Filing
with the U.S. Securities and Exchange Commission for the quarter
ended Jan. 31, 2008.
ABM Industries, Inc. -- http://www.abm.com-- is a facility
services contractor in the U.S. ABM and its subsidiaries
provide janitorial, parking, security, engineering and lighting
services for commercial, industrial, institutional and retail
facilities in hundreds of cities throughout the U.S. and in
British Columbia, Canada. The Company operates through five
segments: Janitorial, Parking, Security, Engineering and
Lighting.
ABM INDUSTRIES: Calif. Court Certifies FLSA Claims in "Batiz"
-------------------------------------------------------------
The U.S. District Court for the Central District of California
certified the Fair Labor Standards Acts claims stated in the
purported class action, "Batiz/Heine v. American Commercial
Security Services (ACSS)," which names a subsidiary of ABM
Industries, Inc., as a defendant.
The named plaintiffs in the suit, which was filed on June 7,
2006, are current or former employees of ABM subsidiaries who
allege, among other things, that they were required to work "off
the clock," were not paid for all overtime, were not provided
work breaks or other benefits, and received pay stubs not
conforming to California law.
They generally seek unspecified monetary damages, injunctive
relief or both.
In January 2008, the U.S. District Court for the Central
District of California conditionally certified the Fair Labor
Standards Acts claims stated in Batiz, according to the
company's March 10, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
Jan. 31, 2008.
ABM Industries, Inc. -- http://www.abm.com-- is a facility
services contractor in the U.S. ABM and its subsidiaries
provide janitorial, parking, security, engineering and lighting
services for commercial, industrial, institutional and retail
facilities in hundreds of cities throughout the U.S. and in
British Columbia, Canada. The Company operates through five
segments: Janitorial, Parking, Security, Engineering and
Lighting.
ANTHEM HEALTH: PTs' Antitrust Lawsuit in Maine Moves Forward
-------------------------------------------------------------
Chief Judge Humphrey of the Maine Business and Consumer Court
recently allowed a class action filed on behalf of all licensed
physical therapists who are participating providers with Anthem
Health Plans of Maine to go forward against Anthem for
allegations of violations of the Maine Antitrust Act, which
carries the possibility of an award of multiple damages and
attorneys fees, as well as a claim of breach of contract.
Anthem is one of four domestic insurers in the state and
represents a substantial portion of the therapists' income. It
is anticipated that the affected physical therapists will be in
the hundreds, and the amount of money being sought in recovery
in the millions.
The class action against Anthem seeks to recover for
underpayments made in violation of the contracts between Anthem
and each of its participating providers. In each of the
underlying contracts, the therapists agreed to reduce their
usual charges for physical therapy services in order to be
eligible to provide services to Anthem's subscribers. The
dispute began in January 2006 when Anthem notified each
participating physical therapist that, effective April 1, it
would reduce the reimbursements outlined in the contracts.
Dissatisfied with what resulted in a 20% reduction in her Anthem
reimbursement, class representative Christy Stout, M.S.P.T.
filed an action on behalf of herself and other participating
therapists, alleging that Anthem had breached the professional
agreements and that it had used its significant market share in
Maine to force the participating physical therapists to
acquiesce to the reimbursement reduction by threatening
termination from all of Anthem's networks if they did not accept
the new arrangement.
"This case involves the right of physical therapists to rely
upon the contractual commitment made by Anthem in its
contracts," Gregory Brodek, lead lawyer representing the class
in the case, said. "Anthem cannot be allowed to unilaterally
dictate a payment rate that jeopardizes the ability of physical
therapists to continue to provide high quality services to the
citizens of Maine."
The case will now move into the discovery phase prior to trial.
For more information, contact:
Gregory A. Brodek (GABrodek@duanemorris.com)
Duane Morris LLP
Suite 500, 470 Atlantic Avenue
Boston, MA 02210-2600
Phone: 207-262-5440
Fax: 207-262-5401
BABY BOTTLE MANUFACTURERS: Continues to Face BPA-Related Suit
-------------------------------------------------------------
The Law Offices of Robert H. Weiss PLLC and Rights for America
are the leading attorneys in a Consumer Class Action lawsuit
filed in 2007 with the Superior Court of Los Angeles County.
Robert Weiss, Esq., filed the billion-dollar class action suit
with the Los Angeles Superior Court against five leading
manufacturers of baby bottles (Class Action Reporter, March 14,
2007).
Five of the leading baby products manufacturers use BPA in the
production of making their plastic baby bottles:
-- Gerber,
-- Evenflo,
-- Avent,
-- Playtex, and
-- Dr. Brown's baby bottles and sippy cups contain BPA.
The suit was filed on behalf of the babies of California, who
may have been injured by drinking out of plastic bottles that
contain the toxic chemical Bisphenol-A, which is used in making
poly-carbonate plastic food and drink packaging. BPA is known
to cause neurological and hormonal damage to lab animals.
Late last year a separate independent panel of international
scientists funded by the National Institutes of Health published
a Consensus Statement indicating that BPA, an estrogen-like
substance used in plastic may pose risks that cause serious
consequences, including injury to infants' developing brain,
neural and reproductive systems. The independent peer-reviewed
studies published to date have shown that even low dose exposure
to BPA can cause estrogen-like effects in laboratory animals. In
contrast, the American Chemical and Plastics Industry
spokespersons have repeatedly claimed there is nothing to be
alarmed about.
However, some scientists believe there is no safe level of
exposure to BPA by infants. BPA has been linked with certain
cancers, impaired immune function, premature onset of puberty,
sexual dysfunction, impairment, deformity and neurological
disorders affecting brain growth.
Mr. Weiss demands that baby bottle manufacturers add a prominent
notice on the packaging of these products stating, "This Product
Is Made With Bisphenol-A" so consumers can be informed before
deciding to purchase a product that might harm their infants and
children.
Rights For America and attorney Robert H. Weiss and Associates
are at the legal-social forefront of this controversy
endangering the infants and children of California and the rest
of the country.
For more information, contact:
Jo Jo Holotka
Public Relations Specialist and Coordinator
Law Offices of Robert H. Weiss PLLC
Phone: (404) 406-7183
(404) 525-3900
BNSF RAILWAY: Okla. Residents Sue Over Toxic Waste from Smelter
---------------------------------------------------------------
A class action lawsuit claims that residents of Blackwell, in
Oklahoma, have been exposed for years to toxic waste left over
from a zinc smelter that operated in the city for more than 50
years, the Associated Press reports.
Attorneys for a group of Blackwell residents filed a lawsuit on
April 14, 2008, in Kay County against mining companies connected
to a smelter site, a local industrial authority, and BNSF
Railway Company. Defendants specifically include the
international mining company Freeport-McMoRan Copper & Gold and
its subsidiary, Phelps Dodge Corporation.
According to AP, the plaintiffs in the lawsuit are four
Blackwell residents, but their attorneys are seeking class-
action status. They claim that the city and property around the
site of the old smelter have been polluted with millions of
pounds of toxic waste produced at the factory.
CASEY'S GENERAL: Discovery to Begin in Kansas Suit Over Hot Fuel
----------------------------------------------------------------
Discovery is set to commence in various "hot fuel" cases, which
names Casey's General Stores, Inc., as one of the defendants,
according to the company's March 7, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for quarter ended
Jan. 31, 2008.
The "hot fuel" cases were consolidated for coordinated pretrial
proceedings in the U.S. District Court for the District of
Kansas.
Initially, Casey's General Stores was named as a defendant in
five lawsuits brought with the federal courts in Kansas and
Missouri against a variety of gasoline retailers. The
complaints generally allege that the Company, along with
numerous other retailers, has misrepresented gasoline volumes
dispensed at its pumps by failing to compensate for expansion
that occurs when fuel is sold at temperatures above 60F.
Fuel is measured at 60F in wholesale purchase transactions and
computation of motor fuel taxes in Kansas and Missouri.
The complaints all seek certification as class actions on behalf
of gasoline consumers within those two states, and one of the
complaints also seeks certification for a class consisting of
gasoline consumers in all states.
The actions generally seek recovery for alleged violations of
state consumer protection or unfair merchandising practices
statutes, negligent and fraudulent misrepresentation, unjust
enrichment, civil conspiracy, and violation of the duty of good
faith and fair dealing. Several of the suits seek injunctive
relief and punitive damages.
These actions are part of a number of similar lawsuits that have
been filed within the past year in 28 jurisdictions, including
26 states, Guam and the District of Columbia, against a wide
range of defendants that produce, refine, distribute, and market
gasoline products in the United States.
On June 18, 2007, the Judicial Panel on Multidistrict Litigation
ordered that all of the pending hot fuel cases be transferred to
the U.S. District Court for the District of Kansas for
coordinated or consolidated pretrial proceedings, including
rulings on discovery matters, various pretrial motions, and
class certification.
All other proceedings have been stayed pending rulings on such
matters. However, it is expected that discovery efforts by both
sides will commence soon.
Casey's General Stores, Inc. -- http://www.caseys.com/--
operates convenience stores under the name Casey's General Store
in nine Midwest states, primarily Iowa, Missouri, and Illinois.
CASEY'S GENERAL: Appeals Ruling in Iowa Assistant Managers' Suit
----------------------------------------------------------------
Casey's General Stores, Inc., is appealing a court decision that
allows plaintiffs to file an amended complaint in a purported
class action against the company, alleging violations of the
state wage laws and the Fair Labor Standards Act, according to
the company's March 7, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for quarter ended Jan. 31,
2008.
The complaint was filed against the Company on May 30, 2007,
with the U.S. District Court for the Northern District of Iowa
by two former assistant managers who claim that Casey's failed
to properly pay them and other assistant managers overtime
compensation.
Specifically, the plaintiffs claim that the assistant managers
were treated as nonexempt employees entitled to overtime pay,
but that the Company did not properly record all hours worked
and failed to pay the assistant managers overtime pay for all
hours worked in excess of 40 per week.
The action purports to be a collective action under the Fair
Labor Standards Act brought on behalf of all "persons who are
currently or were employed during the three-year period
immediately preceding the filing of [the] complaint as
'Assistant Managers' at any Casey's General Store operated by
[the] Defendant (directly or through one of its wholly owned
subsidiaries), who worked overtime during any given week within
that period, and who have not filed a complaint to recover
overtime wages."
The complaint seeks relief in the form of back wages owed all
members of the class during the three-year period preceding the
filing of the complaint, liquidated damages, attorneys fees, and
costs.
The Company filed an answer denying the claims, as well as a
motion for change of venue to the U.S. District Court for the
Southern District of Iowa sitting in Des Moines. That motion
was granted on Aug. 30, 2007, and the case has been transferred
to Des Moines.
On Oct. 31, 2007, the Court conditionally certified the
collective action as to "any employees who are or have been
employed by Casey's as an assistant manager at any time since
Nov. 1, 2004, and who have unresolved claims for unpaid
overtime," and authorized the mailing of notice of the action to
all such persons.
Notice recipients who elected to participate in the lawsuit were
required to file a form opting in to the lawsuit. The opt-in
period has now closed, with approximately 600 persons filing an
opt-in form.
The Company will be allowed to move to decertify the collective
action after discovery is conducted.
On Nov. 20, 2007, the plaintiffs filed a motion to amend their
complaint to include class claims under the state laws of eight
states where the Company operates, based on the same general
factual allegations underlying the FLSA claim.
A ruling by the Magistrate Judge allowing an amended complaint
to be filed has been appealed to the District Court Judge.
The suit is "Jones et al. v. Casey's General Stores Inc., Case
No. 5:07-cv-04043-MWB," filed with the U.S. District Court for
the Northern District of Iowa, Judge Mark W. Bennett presiding.
Representing the plaintiffs is:
Jon E. Heisterkamp, Esq. (jeheisterkamp@yahoo.com)
Peters Law Firm PC
PO Box 1078, 233 Pearl Street
Council Bluffs, IA 51502-1078
Phone: 712-328-3157
Fax: 712-328-9092
CASEY'S GENERAL: Seeks Nixing of Store Employees' Suit in Iowa
--------------------------------------------------------------
Casey's General Stores, Inc. is seeking for the dismissal of
certain claims in a purported class action suit filed against it
alleging violations of the state wage laws and the Fair Labor
Standards Act.
On Jan. 10, 2008, seven current and former store employees filed
a companion case to the action brought by assistant managers.
That companion case was filed by the same attorneys representing
the assistant managers in "Jones et al. v. Casey's General
Stores Inc., Case No. 5:07-cv-04043-MWB", and it is also pending
with the U.S. District Court for the Southern District of Iowa.
The action is filed as a purported "collective action" pursuant
to the Fair Labor Standards Act, and also alleges class claims
based on "the independent statutory state wage and hours laws of
Iowa, Illinois, Indiana, Kansas, Missouri, Nebraska and South
Dakota."
The action purports to be brought on behalf of a class
consisting of essentially all Casey's non-management-level store
employees employed "during the three-year period immediately
preceding the filing of [the] complaint [] at any Casey's
General Store, whether operated directly by Defendant or through
one of its wholly owned subsidiaries."
The complaint alleges that the subject employees were denied
overtime pay for hours worked in excess of 40 hours per week, as
well as mandatory meal and rest breaks, and that the Company
failed to accurately record actual hours worked and willfully
encouraged the employees to work "off-the-clock."
It seeks damages, including alleged unpaid back wages,
liquidated damages, pre- and post- judgment interest, court
costs and attorneys fees, as well as equitable relief pursuant
to various state laws.
A motion to dismiss some of the state law claims was filed on
behalf of the Company on Feb. 8, 2008, according to the
company's March 7, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for quarter ended Jan. 31,
2008.
The suit is "Wineland et al v. Casey's General Stores, Inc.,
Case No. 4:08-cv-00020-RP-TJS," filed with the U.S. District
Court for the Southern District of Iowa, Judge Robert W. Pratt
presiding.
Representing the plaintiffs are:
Jonathan W. Cuneo, Esq. (jonc@cuneolaw.com)
Cuneo Gilbert & Laduca LLP
507 C Street NE
Washington, DC 20002
Phone: 202 789 3960
Fax: 202 789 1813
Scott H. Peters, Esq. (scott.peters@peterslawfirm.com)
Peters Law Firm PC
233 Pearl Street
P.O. Box 1078
Council Bluffs, IA 51502-1078
Phone: 712 328 3157
Fax: 712 328 9092
- and -
Ryan F. Stephan, Esq. (rstephan@stephanzouras.com)
Stephan Zouras, LLP
205 N. Michigan Avenue
Suite 2560
Chicago, IL 60601
Phone: 312 233 1550
Fax: 312 233 1560
Representing the defendants is:
Jason Michael Craig, Esq. (jcraig@ahlerslaw.com)
Ahlers & Cooney PC
100 Court Ave.
Ste. 600
Des Moines, IA 50309-2231
Phone: 515-246-0372
Fax: 515-243-2149
DGA: Settles Levies Lawsuit Filed by Non-Members
------------------------------------------------
The Directors Guild of America, Inc., said that it has settled a
class-action lawsuit filed by nonmembers who challenged the way
the guild collected and disbursed foreign levies, Leslie Simmons
writes for the Hollywood Reporter.
According to Variety, the class action, filed in September 2005
by helmer William Webb, alleged that the DGA did not have the
authority to make foreign collections, had not communicated that
info to members and had not paid them. The amount due to
copyright holders as compensation for reuse, such as taxes on
video rentals, cable retransmissions and purchases of blank
videocassettes and DVDs.
Mr. Webb alleged that the DGA collected foreign levies due him
on "Delta Fever," released domestically in 1987, and the 1993
telepic "The Hit List" but had not paid him.
Hollywood Reporter says that the settlement works out an
arrangement in which an outside accounting firm will conduct an
independent review of the guild's foreign levies program. The
DGA also will set up a Web site for nonmembers to register and
provide information on the site regarding unpaid levies.
"The DGA is proud of its efforts to obtain and ensure each
director's right to a share of foreign levies, and that we have
distributed tens of millions of dollars of levies to so many
directors in our industry," DGA assistant executive director
Morgan Rumpf told Hollywood Reporter. "Although we dispute the
fundamental premise of the litigation and stand by our efforts
and results in distributing foreign levies to members and
nonmembers alike, we are pleased to have resolved this dispute
amicably in its early stages and to be moving forward."
The plaintiffs' attorney, Neville Johnson, Esq., said the
settlement brings "accountability and transparency" to the
program and gives nonmembers full disclosure of how the foreign
levies are distributed.
Hollywood Reporter explains that until the early 1990s, the
foreign levies, which are imposed for such things as home video
rentals and cable distribution, were collected by production
companies.
However, in 1990, the WGA and DGA challenged the companies'
right to collect and retain 100% of the money, according to
Hollywood Reporter. To settle the dispute, all sides entered
into a new agreement under which the DGA and WGA collected the
authors' share on U.S. film and TV programs covered by the
unions' collective bargaining agreement.
To date, the DGA has distributed more than $48 million in levies
to DGA members with more than $4.9 million paid to 2,000
directors who are not members.
DYNAMEX INC: No Reply Brief Filed in Appeal of Calf. Labor Suit
---------------------------------------------------------------
The plaintiff in a purported labor class action against Dynamex,
Inc. has yet to file a reply brief in his appeal against a
decision by the Superior Court of California, Los Angeles County
refusing to certify a class in the matter, according to
Dynamex's March 11, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
Jan. 31, 2008.
A company driver filed the suit on April 15, 2005. It alleges
that the company unlawfully misclassified its California drivers
as independent contractors, rather than employees.
It asserted, as a consequence, entitlement on behalf of the
purported class claimants to overtime compensation and other
benefits under California wage and hour laws, reimbursement of
certain operating expenses, and various insurance and other
benefits and the obligation of the company to pay employer
payroll taxes under federal and state law.
The plaintiff filed a motion for class certification on Nov. 2,
2006. The company responded in a memorandum of points and
authorities in support of the defendants' opposition to the
plaintiff's motion for class certification on Nov. 29, 2006.
A hearing was held on Dec. 12, 2006, and on Dec. 14, 2006, the
plaintiff's Motion for Class Certification was denied. The
plaintiff filed a Notice of Appeal on Jan. 5, 2007.
During the summer of 2007, the plaintiff associated additional
counsel for the appeal. The plaintiff requested and was granted
various extensions in which to file his Opening Brief.
The plaintiff's Brief and the Company's Reply Brief have been
filed. The plaintiff is required to file his Reply Brief on
March 31, 2008. Thereafter, the Court will schedule an oral
hearing.
Dynamex, Inc. -- http://www.dynamex.com-- is a provider of
same-day delivery and logistics services in the U.S. and Canada.
Through its network of business centers, the Company provides
same-day, on-demand, door-to-door delivery services utilizing
its ground couriers.
DYNAMEX INC: Faces N.Y. Suit Over Misclassification of Drivers
--------------------------------------------------------------
Dynamex, Inc., is facing a purported class action with the U.S.
District Court for the Southern District of New York over an
alleged misclassification of its drivers as independent
contractors instead of employees.
On Oct. 17, 2007, two former independent contractor drivers in
New York filed a purported class action/collective action
against the Company, alleging that the company had unlawfully
misclassified its drivers in New York and in the U.S. as
independent contractors rather than as employees, and the
Company had unlawfully failed to comply with the "Truth In Truck
Leasing" and "Leasing Regulations" under U.S. Transportation
Statutes.
The Complaint seeks relief under the New York Labor and Wage
Statutes and the U.S. Fair Labor Standards Act including payment
of wages for all hours worked plus overtime, as well as for
reimbursement of business expenses and improper deductions made
from driver wages.
The truck leasing claims seek unspecified amounts by which
plaintiffs were underpaid and amounts for which the Company had
over deducted. Injunctive relief to prevent further violations
is sought.
The company reported no development in the matter in its
March 11, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Jan. 31, 2008.
The suit is "Berrios et al v. Dynamex, Inc. et al., Case No.
1:07-cv-09293-RJS," filed with the U.S. District Court for the
Southern District of New York under Judge Richard J. Sullivan.
Representing the plaintiffs are:
Fran L. Rudich, Esq. (frudich@lockslawny.com)
Locks Law Firm PLLC
110 East 55th Street
New York, NY 10022
Phone: (212) 838-3333
Fax: (212) 838-3735
- and -
Jeffrey Michael Gottlieb, Esq. (nyjg@aol.com)
Berger & Gottlieb
150 E. 18 St.
New York, NY 10003
Phone: (212)-228-9795
Fax: (212)-982-6284
Representing the defendants is:
Jeffrey W. Brecher, Esq. (brecherj@jacksonlewis.com)
Jackson Lewis LLP
58 South Service Road
Melville, NY 11747
Phone: 631-247-0404
Fax: 631-247-0417
FELTEX CARPETS: Few Shareholders Opt Out of Class Action
--------------------------------------------------------
Only around 30 of an estimated 10,000 Feltex Carpets Ltd.
shareholders have opted not to sue the former directors, owners
and advisers of the failed carpet maker, Maria Slade writes for
the New Zealand Herald.
The report recounts that in March, shareholders launched a
unique group action which required those who bought shares in,
and subsequent to, the 2004 Feltex float to actively opt out if
they did not want to be part of it.
The shareholders have filed a claim with the High Court to get
their money back, and if they succeed, that could be as much as
NZ$254 million, which is the amount invested in the public
float.
The Class Action Reporter reported on Dec. 4, 2006, that lawyer
Garry Wakefield in Christchurch, New Zealand, asked support to
file a class action against the former directors of bankrupt
Feltex Carpets, which was recently sold to carpet giant Godfrey
Hirst. Mr. had written to 8,893 Feltex shareholders asking for
NZ$380 each to support the suit against the company and the
promoters of its 2004 float. Credit Suisse First Boston Asian
Merchant Partners, an associate of CS First Boston, sold the
company to the public. The Securities Commission has
investigated the float and found no wrongdoing.
The deadline for opting out was at 4:00 p.m. on April 11. After
that, shareholders were considered to be part of the action.
Mr. Wakefield said that as of the first week of April, only
around 30 had opted out. Four of those were individuals, and
the rest were parties associated with the advisers targeted in
the action, because to stay in would mean they were effectively
suing themselves.
According to NZ Herald, the shareholders have unnamed backers
who are prepared to fund the court action for the next year.
They are putting up their money on a no-win, no-fee basis. If
shareholders remain in the group, their share of the legal costs
will be deducted out of any award they win.
The total amount budgeted for the action, including costs if the
shareholders lose, is NZ$2.5 million.
The shareholders allege they were misled by the prospectus for
the float. In the gun are former Feltex chairman Tim Saunders,
chief executive Sam Magill, and directors John Feeney, Peter
Hunter, Peter Thomas, Craig Horrocks and Joan Withers, who all
signed the prospectus.
Also targeted are the firm that offered Feltex for sale, Credit
Suisse; an associated company and the joint lead managers of the
float, First New Zealand Capital and Forsyth Barr.
FLORIDA: Broward County Canker Lawsuit in Jury Selection Stage
--------------------------------------------------------------
In the first of five class-action lawsuits to go to trial, more
than 60,000 Broward County homeowners will wage a high-stakes
showdown against the state of Florida for destroying their
orange, lemon, grapefruit and other citrus trees in its
aggressive quest to eradicate citrus canker, MiamiHerald.com
reports.
The Broward Case
The Class Action Reporter, on Feb. 25, 2008, recounted that a
class-action lawsuit was filed on behalf of about 70,000 Broward
County homeowners against the state, particularly the Florida
Department of Agriculture, which cut down citrus trees across
South Florida between over 10 years as part of the Canker
Eradication Program.
The Canker Eradication Program
Citrus canker is a plant disease which is harmless to humans but
which damages trees -- specifically blemishes fruit, weakens the
tree, causes loss of production, and eventually be fatal to the
tree. The state claimed that the trees were worthless because
they were either infected or potentially infected. The program
was an effort to stop the spread of the plant disease,
particularly to keep it from the commercial groves of Central
and East Central Florida. However, the program failed, and
after a decade and nearly $1 billion spent, the state and
federal government abandoned it.
At issue is the value in Broward's case: just over 133,000 trees
were cut down by the state since January 2000. The state's tree
cutters were ordered to remove all trees infected with canker,
and non-infected ones within 1,900 feet of those that were
infected.
Florida had argued that those trees would have become diseased
and declined as many other trees in Broward have. Thus, it
asserted, the trees that were removed from the 1,900-foot zone
had minimal value.
Homeowners, however, contended that the trees had considerable
value, either from the fruit they bore or the shade they
provided.
Judge Favored Broward Residents
Circuit Judge Ronald Rothschild, on Feb. 21, 2008, ruled in
favor of the Broward homeowners who lost their citrus trees,
saying that the agriculture department destroyed the homeowners'
property without paying adequate compensation.
Judge Rothschild, at that time, did not yet award damages. The
next step is for the judge to empanel a jury to hear testimony
from both sides and decide how to set a value on the destroyed
trees.
According to MiamiHerald, the outcome of the Broward trial,
though not binding in other counties, could foretell what may
happen in the four other cases that involve tens of thousands of
homeowners and 587,000 trees statewide. A large verdict for
homeowners statewide could have a potential multi-million dollar
impact on the state's budget.
Jury Selection
MiamiHerald relates that lawyers began questioning a pre-
screened pool of 90 to 100 potential jurors. Jury selection
could be challenging, since many residents or their relatives or
neighbors in South Florida, have seen the chain-saw's wrath.
Given that so many people have been affected by the eradication
program and given the highly public controversy, "it may prove
very difficult to select a jury," but not impossible, Tony
Alfieri, director of the University of Miami Law School's Center
for Ethics and Public Service, told MiamiHerald.
Both sides will face obstacles in finding jurors, said Miami-
based litigation consultant Sanford H. Marks, president and
founder of Trial Tech Inc. Even though potential jurors may not
have had trees destroyed themselves, many will likely know
someone who did, Mr. Marks added.
Moreover, people also remember what they read, saw or heard in
the media, the report notes. During the eradication program,
there was considerable media coverage.
Finally, there are people who just, "don't like 'the state' in
essence telling them what to do," Mr. Marks said.
"I think that the day of judgment has finally arrived for the
Department of Agriculture and Commissioner (Charles) Bronson,"
Bobby Gilbert, Esq., lead Miami-based attorney for the
plaintiffs in Broward and four other counties where lawsuits
have been filed -- Orange, Palm Beach, Miami-Dade and Lee
counties -- told MiamiHerald.
FREEPORT-MCMORAN: Sued in OK Over Lead and Arsenic Contamination
----------------------------------------------------------------
Nix, Patterson & Roach LLP, a nationally recognized plaintiffs'
law firm, filed a major class action lawsuit in Kay County,
Oklahoma, on behalf of roughly 7,000 residents of the town of
Blackwell, Oklahoma.
The lawsuit accuses defendants Phelps Dodge Corporation and its
parent company, Freeport-McMoRan Copper & Gold, Inc., of failing
to properly address lead, arsenic, and cadmium contamination in
the Blackwell area.
This contamination is related to the operation of the Blackwell
Zinc Smelter, which was located in Blackwell from 1916 until
1974 and was at one time the largest smelter of its type in the
United States. According to recent tests, 76% of Blackwell
homes contain lead dust above safety levels set by the U.S.
Environmental Protection Agency, and 90% of Blackwell homes are
contaminated with arsenic above EPA safety standards.
As owners of the company which operated the Blackwell Zinc
Smelter, Freeport-McMoRan and Phelps Dodge are liable for
contamination related to smelting activities. This lawsuit
demands that the defendants comprehensively remediate all
contaminated property and reimburse residents for damage to
property values. The legal action also asks defendants to
provide for a medical-monitoring program open to all Blackwell
residents.
Lead, arsenic, and cadmium can cause a wide variety of health
problems, including brain damage, neurological damage, learning
disabilities, and cancer. Blood tests conducted by the Oklahoma
State Department of Health show that 30% of Blackwell children
have enough lead in their blood to cause brain damage.
In the early 1990s, the EPA deferred oversight of the Blackwell
Zinc Smelter site to the Oklahoma Department of Environmental
Qualityrather than place it on the National Priorities List.
Since that time, the DEQ has set minimum cleanup levels for the
defendants that are insufficient to protect human health.
"The contamination of Blackwell represents a public health
crisis," said Nelson Roach, Esq., a partner with Nix, Patterson
& Roach and an attorney representing the plaintiffs. "Past and
current attempts to remediate this town haven't cleaned up the
problem -- they've covered up the problem. The children of this
community are going to continue to be at risk until these
companies are forced to remove this contamination properly."
Nix, Patterson & Roach is being assisted in this case by
attorneys Ben Barnes of Beeler, Walsh & Walsh PLLC and Andrew
Ihrig of the Ihrig Law Firm.
The suit is "Bob Coffey, Loretta Corn, and Larry and Mary Ellen
Jones, Individually and on Behalf of All Others Similarly
Situated, Plaintiffs, v. Freeport-McMoRan Copper & Gold Inc.;
Phelps Dodge Corporation; et al., Defendants, Case No. CJ-2008-
68," filed with the District Court of Kay County in the State of
Oklahoma.
GOODYEAR TIRE: Judge Wants More Info in VEBA Trust Lawsuit
----------------------------------------------------------
Judge John R. Adams of the U.S. District Court for the Northern
District of Ohio is in no hurry to approve the proposed $1-
billion-plus independent health-care trust that would pay
benefits for about 30,000 United Steelworkers who retired from
Goodyear Tire & Rubber Company, according to Beacon Journal.
Judge Adams told lawyers representing the union, Goodyear and
parties to a class-action lawsuit that he needed more and better
information on the long-term financial viability of the
Voluntary Employees Beneficiary Association. The Steelworkers
and Goodyear agreed to create the VEBA as part of a settlement
to the union's 85-day strike in 2006.
During a two-hour hearing, Judge Adams said he will review the
latest paperwork and might call another hearing in a week or ask
for more evidence.
Beacon Journal says that Judge Adams' decision left teams of
lawyers trying to figure out exactly what kind of actuarial
information the judge said he needs.
As reported in the Class Action Reporter on Feb. 20, 2008, Judge
Adams gave preliminary approval to the proposed settlement in
the case, which is captioned "Redington, et al. v. Goodyear Tire
& Rubber Company, Case No. 5:07-cv-01999-JRA."
The CAR recounted that on July 3, 2007, the United Steelworkers
and several retirees filed a required class action regarding the
establishment of the VEBA, which is intended to provide
healthcare benefits for current and future USW retirees.
The parties subsequently agreed to settle the matter.
Under the settlement deal, the parties agreed to create a VEBA
trust fund. As part of this settlement, the court will certify
the class of retirees covered under the proposed VEBA.
Essentially, Goodyear has agreed to pay as much as $1 billion to
the fund, which then will have sole responsibility for union
retirees' health care costs. The independent health care trust
stands to benefit the union's 30,000 retirees. Goodyear expects
to save $110 million a year and take $1.2 billion in liabilities
off its books with the creation of the VEBA trust.
Judge Adams said during the hearing that he has a heightened
sense of duty and obligation over the creation of the trust
because of the number of people it will affect.
"My task here today is to decide if the proposed settlement is
fair," Judge Adams said. He stated that he needed to see such
things as the projected number of retirees over at least the
next five years, inflation rates, the age of retirees and more.
The VEBA agreement, in part, appears to be based on the
anticipation that the federal government will be involved in
health care at some point, he said.
"There's a whole host of issues I hoped would be addressed here
today," Judge Adams said. Instead, he added, new information
presented to him was a three-page, seven-paragraph affidavit.
Short-term projections show the VEBA will be financially viable
for the next three years, the judge pointed out. However, he
said that he is "concerned over the long term, not the next
three years."
Moreover, under the deal, steelworkers who are currently working
will be required to pay a substantial part of their earnings
into the VEBA to keep it viable, Judge Adams noted. Working
Steelworkers will pay part of their cost-of-living increases and
profit sharing into the fund. Because of that, the VEBA has the
potential to pit the interests of current workers against the
interests of retirees, Judge Adams further contended.
The Steelworkers explained that there were 3,625 retirees in the
Akron and Stow area as of the beginning of 2006, plus an
additional 1,403 spouses, who would be covered under the trust.
Nationally, there were 30,068 Steelworker retirees and spouses
whose health-care benefits would be covered by the trust. The
trust will not pay benefits to retired Goodyear salaried
employees.
Beacon Journal notes that, according lawyers, the VEBA should be
able to last as long as 30 years, depending in part on the
amount of contributions from working Steelworkers and the cost
of paying out benefits to retirees. While there is a risk the
VEBA could find itself in financial trouble, there is also a
risk that Goodyear could find itself in bankruptcy in 30 years,
too, the Steelworkers argued.
The report relates that the VEBA will be run by a committee made
up of three union representatives, two retiree representatives
and four public members with expertise in benefits. Goodyear
will have no one on the committee.
The parties to the VEBA preliminary agreement will provide any
additional information that the court requests, Goodyear
spokesman Keith Price told Beacon Journal.
The suit is "Redington, et al. v. Goodyear Tire & Rubber
Company, Case No. 5:07-cv-01999-JRA," filed with the U.S.
District Court for the Northern District of Ohio, Judge John R.
Adams presiding.
Representing the plaintiffs are:
Jeremiah A. Collins, Esq. (jcollins@bredhoff.com)
Bredhoff & Kaiser
Ste. 1000, 805 Fifteenth Street, NW
Washington, DC 20005
Phone: 202-842-2600
Fax: 202-842-1888
Jori B. Naegele, Esq.
Gary, Naegele & Theado
446 Broadway
Lorain, OH 44052-1797
Phone: 440-244-4809
Fax: 440-244-3462
e-mail: envirolit@aol.com
- and -
Joseph M. Sellers, Esq. (jsellers@cmht.com)
Cohen, Milstein, Hausfeld & Toll
500 West Tower, 1100 New York Avenue, NW
Washington, DC 20005-3964
Phone: 202-408-4600
Fax: 202-408-4699
Representing the defendants are:
Johanna Fabrizio Parker, Esq. (jfparker@jonesday.com)
Jones Day
901 Lakeside Avenue
Cleveland, OH 44114
Phone: 216-586-7263
Fax: 216-579-0212
HEWLETT-PACKARD: June 2008 Trial Set for CA "Smart Chips" Suit
--------------------------------------------------------------
A tentative June 2008 trial is slated for the consolidated
lawsuit against Hewlett-Packard Co. over its use of "smart
chips" in its inkjet printer cartridges.
In general the consolidated suit claims that the "smart chips"
erroneously signal to the customer that certain inkjet printer
cartridges need to be replaced before they are really empty, and
include an expiration date that is allegedly not documented in
marketing materials provided to consumers.
Feder Litigation
The suit, "Feder v. HP (formerly Tyler v. HP)," was filed with
the U.S. District Court for the Northern District of California
on June 16, 2005 asserting breach of express and implied
warranty, unjust enrichment, violation of the Consumers Legal
Remedies Act and deceptive advertising and unfair business
practices in violation of California's Unfair Competition Law.
Among other things, the plaintiffs alleged that HP employed a
"smart chip" in certain inkjet printing products in order to
register ink depletion prematurely and to render the cartridge
unusable through a built-in expiration date that is hidden, not
documented in marketing materials to consumers, or both.
The plaintiffs also contend that consumers received false ink
depletion warnings and that the smart chip limits the ability of
consumers to use the cartridge to its full capacity or to choose
competitive products.
Ciolino Litigation
On Sept. 6, 2005, a lawsuit captioned, "Ciolino v. HP," was
filed in the U.S. District Court for the Northern District of
California.
Consolidation
The allegations in the Ciolino case are substantively identical
to those in "Feder," and the two cases have been formally
consolidated in a single proceeding in the U.S. District Court
for the Northern District of California under the caption, "In
re HP Inkjet Printer Litigation."
On Jan. 4, 2008, the court heard the plaintiffs' motions for
class certification and to add a class representative and
defendant's motion for summary judgment. These motions are
currently under submission.
Trial has been set for June 2008, according to the company's
March 10, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Jan. 31, 2008.
The suit is "In re: HP Inkjet Printer Litigation, Case No. 5:05-
cv-03580-JF," filed with the U.S. District Court for the
Northern District of California, Judge Jeremy Fogel presiding.
Representing the plaintiffs is:
Bruce Lee Simon, Esq. (bsimon@cpsmlaw.com)
Cotchett Pitre & Simon
S.F. Airport Office Center, 840 Malcolm Road, Ste. 200
Burlingame, CA 94010
Phone: 650.697.6000
Fax: 650.692.3606
Representing the defendants is:
Sally J. Berens, Esq. (sberens@gibsondunn.com)
Gibson, Dunn & Crutcher, LLP
1881 Page Mill Road
Palo Alto, CA 94304
Phone: 650-849-5300
Fax: 650-849-5333
HEWLETT-PACKARD: December 2009 Trial Set for "Rich" Litigation
--------------------------------------------------------------
A tentative December 2009 trial is slated for a purported class
action filed with the U.S. District Court for the Northern
District of California against Hewlett-Packard Co.
The suit is "Rich v. Hewlett-Packard Company, Case No. 5:06-cv-
03361-JF," which is a consumer class action filed against the
company on May 22, 2006.
It alleges that HP designed its color inkjet printers to
unnecessarily use color ink in addition to black ink when
printing black and white images and text.
The plaintiffs seek injunctive and monetary relief on behalf of
a nationwide class.
The Court has granted HP's motion to dismiss several of the
plaintiffs' claims, and HP answered the remaining claims in
February 2007.
The Court set a deadline of Jan. 23, 2009, by which plaintiffs
need to file a motion for class certification.
Trial has been set for December 2009, according to the company's
March 10, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Jan. 31, 2008.
The suit is "Rich v. Hewlett-Packard Company, Case No. 5:06-cv-
03361-JF," filed with the U.S. District Court for the Northern
District of California, Judge Jeremy Fogel presiding.
Representing the plaintiffs is:
Brian S. Kabateck, Esq. (bsk@kbklawyers.com)
Kabateck Brown Kellner, LLP
644 South Figueroa Street
Los Angeles, CA 90071
Phone: 213/217-5000
Fax: 213/217-5010
- and -
Stephen Michael Garcia, Esq. (jmobley@lawgarcia.com)
Garcia Law Firm
Suite 1950
One World Trade Center
Long Beach, CA 90831
Phone: 562-216-5270
Representing the defendants is:
Christopher Chorba, Esq. (cchorba@gibsondunn.com)
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071
Phone: 213-229-7000
Fax: 213-229-7520
HEWLETT PACKARD: Appeals Remanding of "Digwamaje" to N.Y. Court
---------------------------------------------------------------
Hewlett Packard Co. and numerous other multinational firms filed
a certiorari petition with the U.S. Supreme Court in connection
with a decision by the U.S. Court of Appeals for the Second
Circuit wherein it remanded the purported class action,
"Digwamaje et al. v. IBM et al.," back to the U.S. District
Court for the Southern District of New York for further
proceedings.
The case was filed on Sept. 27, 2002, with the U.S. District
Court for the Southern District of New York on behalf of current
and former South African citizens and their survivors who
suffered violence and oppression under the apartheid regime.
The lawsuit alleges that HP and other companies helped
perpetuate, profited from, and otherwise aided and abetted the
apartheid regime during the period from 1948-1994 by selling
products and services to agencies of the South African
government.
Claims are based on the Alien Tort Claims Act, the Torture
Victims Protection Act, the Racketeer Influenced and Corrupt
Organizations Act and state law.
The complaint seeks, among other things, an accounting, the
creation of a historic commission, compensatory damages in
excess of $200 billion, punitive damages in excess of $200
billion, costs and attorneys' fees.
On Nov. 29, 2004, the court dismissed with prejudice the
plaintiffs' complaint. In May 2005, the plaintiffs filed an
amended notice of appeal in the U.S. Court of Appeals for the
Second Circuit.
On Jan. 24, 2006, the Second Circuit Court of Appeals heard oral
argument on the plaintiffs' appeal but has not yet issued a
decision.
On Oct. 12, 2007, the U.S. Court of Appeals for the Second
Circuit affirmed in part and reversed in part the District
Court's decision.
The Second Circuit affirmed the dismissal of the plaintiffs'
claims under the Torture Victims Protection Act, but reversed
the District Court's dismissal of the plaintiffs' Alien Tort
Claims Act claims, finding that it was possible for the
plaintiffs to state such a claim.
The Second Circuit, therefore, remanded the case to the District
Court to permit the plaintiffs to attempt to plead the
allegations needed to state a claim under the Alien Tort Claims
Act.
On Jan. 10, 2008, HP and the other defendants filed a certiorari
petition with the U.S. Supreme Court, which plaintiffs plan to
oppose, according to the company's March 10, 2008 Form 10-Q
Filing with the U.S. Securities and Exchange Commission for the
quarter ended Jan. 31, 2008.
The suit is "Digwamaje, et al. v. IBM Corp., et al., Case No.
1:02-cv-06218-JES," filed with the U.S. District Court for the
Southern District of New York, Judge John E. Sprizzo presiding.
Representing the plaintiffs are:
Kweku J. Hanson, Esq.
487 Main Street
Harford, CT 06106,
Phone: (860) 728-5454
Fax: (860) 548-9660
Medi Moira Mokuena
268 Jubilee Avenue
Halfway House 1685, Extension 12
Republic of South Africa
- and -
Paul M. Ngobeni, Esq.
914 Main Street, Suite 206
East Hartford, CT 06108
Phone: (860) 289-3155 and (508) 620-4798
Representing the defendants are:
Kristin M. Heine, Esq.
Drinker, Biddle & Reath, LLP
500 Campus Drive
Florham Park, NJ 07932-1047
Phone: (973) 549-7338
Fax: (973) 360-9831
Web site: http://www.drinkerbiddle.com/
- and -
Kristin Michele Heine, Esq. (kristin.heine@dbr.com)
Drinker, Biddle & Reath, LLP
140 Broadway, 39th Flr.
New York, NY 10005
Phone: (973) 549-7338
Fax: (973) 360-9831
IPO LITIGATION: Reply Briefs Supporting Dismissal Bid Filed
-----------------------------------------------------------
The defendants in the matter, "Initial Public Offering
Securities Litigation," have filed reply briefs supporting their
earlier motion to dismiss the six focus cases in the case as
well as an opposition to 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 Corvis Corp.; Engage
Technologies, Inc.; Firepond, Inc.; iXL Enterprises, Inc.;
Sycamore Networks, Inc.; and 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, 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 plaintiffs' petition
for rehearing, but allowed the plaintiffs to request that the
district court certify a more limited class. On April 23, 2007,
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.
On Dec. 21, 2007, the issuers and the underwriters filed papers
opposing plaintiffs' class certification motion and plaintiffs
filed an opposition to defendants' motions to dismiss.
On Jan. 28, 2008, the issuers and the underwriters filed reply
briefs in further support of their motions to dismiss the
amended complaints.
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-
ininterest to Ziff-Davis)1 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 InternationalLtd. 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.