C L A S S A C T I O N R E P O R T E R
Wednesday, May 14, 2008, Vol. 10, No. 95
Headlines
AEROTEK INC: Faces California Suit Over Labor Laws Violations
ARKANSAS BEST: Faces Lawsuit Over LTL Shipment Fuel Surcharges
ASSOCIATED ESTATES: No Summary Judgment Yet in Suredeposit Suit
BABY BOTTLE MAKERS: Face Kansas Lawsuit Over "Toxic" Bottles
BEAR STEARNS: Study Finds that Employees Should Opt Out of Suit
CANADA: Intrusive Electricity-Use Law Challenged in B.C. Suit
CENTRO PROPERTIES: To Fight AUD100-Million Lawsuit by IMF
CHARLIE'S PRODUCE: Recalls Cantaloupe for Possible Health Risk
CINCINNATI BELL: Denies Claims in Anthem Demutualization Lawsuit
CLIMATE MASTER: Faces Consumer Fraud Litigation in Illinois
DISCOVERY LABS: Appeals Court Upholds Surfaxin Suit Dismissal
ELI LILLY: Faces US & Canadian Suits Over Zyprexa Effects, Sale
ELI LILLY: N.Y. Court Dismisses Consolidated Securities Lawsuit
ELI LILLY: Indiana Court Still to Certify Racial Bias Case
GOOGLE: California Suit Filed on Defrauded Phone Users' Behalf
INTERMUNE INC: Lung Drug "Actimmune" Prompts California Lawsuit
IPO LITIGATION: N.Y. Court Denies Multiple Dismissal Motions
KINDER MORGAN: Arkansas State Court Dismisses "Johnson" Suit
LEADIS TECH: Appeals Court Reverses IPO Suit Dismissal Ruling
LIFELOCK INC: Sued in W.V. Over Deceptive Marketing Practices
LIVENT INC: Drabinsky Fraud Trial Begins After Six Years
MERRILL LYNCH: Faces Suits in N.Y. Over Auction Rate Securities
NEUROMETRIX: May 16 Deadline Set for Lead Plaintiff Application
PANTRY INC: Court Still to Approve Wage, Hour Suit Settlement
PANTRY INC: Alabama Court Dismisses FLSA Violations Lawsuit
PANTRY INC: KS Court Denies Motion to Dismiss "Hot Fuel" Suits
PARKER-HANNIFIN: Seeks Nixing of Marine Hose Price-Fixing Suit
PERFORMANCE FOOD: Faces Consolidated Merger Suit in Tennessee
SIGMA-ALDRICH: Suit Over Nitric Oxide Plant Accident on Appeal
ST. JUDE: Still Faces Silzone Suit Filed for E.E.U. Residents
ST. JUDE: Still Faces Suits Over Silzone-Coated Heart Valves
ST. JUDE: Discovery Ongoing in Minnesota Securities Fraud Case
STONYFIED FARM: Recalls Blueberry Yogurts Containing Fragments
TENET HEALTHCARE: Dismissal of RICO Violations Suit Under Appeal
TENET HEALTHCARE: Still Faces California Labor Violations Suits
VETERANS AFFAIRS: Vets Await Inadequate Healthcare Suit Verdict
WASHOE COUNTY: Incline Residents Sue Over Tax Revolt
* Overtime Class Actions Dead in British Columbia, FP Says
New Securities Fraud Cases
CANDELA CORP: Schiffrin Barroway Files Massachusetts Fraud Suit
OPPENHEIMER & CO: Girard Gibbs Files N.Y. Securities Fraud Suit
RBC DRAIN: Girard Gibbs Files Securities Fraud Lawsuit in N.Y.
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
* Online Teleconferences
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AEROTEK INC: Faces California Suit Over Labor Laws Violations
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General Motors Corp. and Aerotek Inc. are facing a class-action
complaint filed with the Superior Court of the State of
California in and for the County of San Diego alleging that
Aerotek required its district managers to drive GM cars no more
than two years old but did not reimburse them for it, or for
other expenses, and stiffed them for overtime, CourtHouse News
Service reports.
Named plaintiff Brian Hough claims that GM and Aerotek required
him to drive the nearly new GM cars in the course of his job
pushing GM's "ACDelco" products.
The plaintiff asks the court:
-- for nominal damages
-- for actual damages;
-- for compensatory damages;
-- for restitution of all compensation due to plaintiff;
-- for disgorged profits from the unfair and unlawful
business practices of defendants;
-- for interest accrued to date;
-- for interest pursuant to Labor Code sections 218.6 and
1194;
-- for punitive and exemplary damages;
-- for costs of suit and expenses incurred pursuant to
Labor Code sections 226, 1194, and 2802;
-- for reasonable attorneys' fees pursuant to Labor Code
sections 226, 1194, and 2802, and California Code of
Civil Procedure sections 1021.5;
-- for appropriate injunctive relief;
-- for appropriate equitable relief;
-- for all such other and further relief that the court may
deem just and proper.
The suit is "Brian Hough et al. v. Aerotek, Inc., et al., Case
No. 37-2008-00063506-CU-MT-CTL," filed in the Superior Court of
the State of California in and for the County of San Diego.
Representing the plaintiff is:
Harvey C. Berger, Esq.
Pope, Berger & Williams, LLP
550 West "C" street, Suite 1400
San Diego, California 92101
Phone: 619-595-1366
Fax: 619-236-9677
ARKANSAS BEST: Faces Lawsuit Over LTL Shipment Fuel Surcharges
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Arkansas Best Corp. and other less-than-truckload carriers are
facing a consolidated class action suit in the U.S. District
Court for the Northern District of Georgia accusing them of
conspiring throughout four years or more to fix fuel surcharges
on LTL shipments, according Arkansas Best's May 6, 2008 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended March 31, 2008.
On July 30, 2007, Farm Water Technological Services, Inc. (doing
business as Water Tech) and C.B.J.T. (doing business as
Agricultural Supply), on behalf of themselves and other
plaintiffs, filed the putative class action lawsuit against
Arkansas Best and other companies engaged in the LTL trucking
business in the U.S. District Court for the Southern District of
California (Class Action Reporter, April 7, 2008).
The other named defendants in the complaint are:
-- Arkansas Best Corp.,
-- Averitt Express,
-- Con-Way, Inc.,
-- Fedex Corp.,
-- Jevic Transportation, Inc.,
-- Sun Capital Partners IV, LLC,
-- New England Motor Freight, Inc.,
-- R+L Carriers, Inc.,
-- Saia, Inc.,
-- United Parcel Service, Inc.,
-- YRC Worldwide Inc., and
-- Old Dominion Motor Freight, Inc.
Farm Water and its subsidiary, C.B.J.T. contend that the
practice dates back to 2003 (Class Action Reporter, Aug. 29,
2007). They assert that the carriers agreed to impose identical
or nearly identical surcharges by linking them to diesel fuel
prices published by the U.S. Department of Energy and by listing
surcharges on their websites to communicate pricing.
The plaintiff brings the action on behalf of all persons or
entities who purchase LTL service directly to defendants or
their unnamed co-conspirators from July 30, 2003, through the
conclusion of the trial in this matter (Class Action Reporter,
Aug. 2, 2007).
The plaintiff wants the court to rule on:
(a) whether defendants and their co-conspirators engaged in
a combination and conspiracy among themselves to fix,
raise, maintain or stabilize fuel surcharges imposed
for LTL services sold in the United States;
(b) the identity of participants in the conspiracy;
(c) the duration of the conspiracy alleged in this
complaint and the nature and character of the acts
performed by defendants and their co-conspirators in
furtherance of the conspiracy;
(d) whether the alleged conspiracy violated Section of the
Sherman Act;
(e) whether the conduct of defendants and their co-
conspirators, as alleged in the complaint, caused
injury to the business and property plaintiffs and
other members of the classes;
(f) the effect of defendants' conspiracy on the prices of
LTL services sold in the United States during the class
period; and
(g) the appropriate measure of damages sustained by
plaintiffs and other members of the damages class.
The plaintiffs pray that:
-- the court determines that this action may be maintained
as a class action under Rule 23 of the Federal Rules of
Civil Procedure;
-- the contract, combination or conspiracy, and the acts
done in furtherance thereof by defendants and their co-
conspirators, b adjudged to have been in violation of
Section 1 of the Sherman Act, 15 U.S.C. Section 1;
-- judgment be entered for plaintiffs and members of the
damages class against defendants for three times the
amount of damages sustained by plaintiffs and the
damages class as allowed by law, together with the costs
of this action, including reasonable attorneys' fees;
-- defendants and their affiliates, successors,
transferees, assignees, and the officers, directors,
partners, agents and employees thereof, and all other
persons acting or claiming to ac on their behalf, be
permanently enjoined and restrained from, in any manner:
(i) continuing, maintaining or renewing the contract,
combination or conspiracy alleged, or from engaging
in any other contract, combination or conspiracy
having a similar purpose or effect, and from
adopting or following any practice, plan, program
or device having a similar purpose or effect; and
(ii) communicating or causing to be communicated to any
other person engaged in the manufacture,
distribution or sale of any product except to the
extent necessary in connection with a bona fide
sales transaction between the parties to such
communications; and
-- plaintiffs and members of the class have such other,
further and different relief as the case may require and
the court may deem just and proper under the
circumstances.
Subsequent to this original complaint, similar complaints have
been filed against the defendants and other LTL motor carriers,
each with the same allegation of conspiracy to fix fuel
surcharge rates.
On Dec. 20, 2007, these cases were consolidated in the U.S.
District Court for the Northern District of Georgia and are now
in the process of being transferred to that court.
Arkansas Best Corp. -- http://www.arkbest.com/-- is a holding
company. The Company, through its subsidiaries, is engaged in
motor carrier transportation operations. Its principal
subsidiary is ABF Freight System, Inc. ABF offers national,
inter-regional and regional transportation of general
commodities through standard, expedited and guaranteed less-
than-truckload services. General commodities include all
freight except hazardous waste, dangerous explosives,
commodities of exceptionally high value and commodities in bulk.
ABF accounted for 96.4% of the Company's consolidated revenues
for 2007. The Company's LTL motor carrier operations are
conducted through ABF, ABF Freight System Ltd., ABF Freight
System Canada, Ltd., ABF Cartage, Inc. and Land-Marine Cargo,
Inc. On June 15, 2006, the Company sold its wholly owned
subsidiary, Clipper Exxpress Co., to a division of Wheels Group.
With this sale, the Company exited the intermodal transportation
business.
ASSOCIATED ESTATES: No Summary Judgment Yet in Suredeposit Suit
---------------------------------------------------------------
The Franklin County, Ohio Court of Common Pleas has yet to rule
on a motion for summary judgment filed by Associated Estates
Realty Corp. in a suit over its Suredeposit program.
On or about April 14, 2002, Melanie and Kyle Kopp commenced an
action against the company in the Franklin County, Ohio Court of
Common Pleas seeking undetermined damages, injunctive relief and
class action certification. This case arose out of the
company's Suredeposit program.
The Suredeposit program allows cash short prospective residents
to purchase a bond in lieu of paying a security deposit. The
bond serves as a fund to pay those resident obligations that
would otherwise have been funded by the security deposit.
The plaintiffs allege that the non-refundable premium paid for
the bond is a disguised form of security deposit, which is
otherwise required to be refundable in accordance with Ohio's
Landlord-Tenant Act.
They further allege that certain pet deposits and other
nonrefundable deposits required by the company are similarly
security deposits that must be refundable in accordance with
Ohio's Landlord-Tenant Act.
On or about Jan. 15, 2004, the plaintiffs filed a motion for
class certification. The company subsequently filed a motion
for summary judgment. Both motions are pending before the
court.
The company reported no further development in the matter in its
May 6, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2008.
Associated Estates Realty Corp. -- http://www.aecrealty.com/--
is an integrated multifamily real estate company engaged in
property acquisition, advisory, development, management,
disposition, operation and ownership activities.
BABY BOTTLE MAKERS: Face Kansas Lawsuit Over "Toxic" Bottles
------------------------------------------------------------
On May 1, 2008, Rights For America attorneys Robert H. Weiss,
Esq., and Stephen Murakami, Esq., along with two prominent class
action law firms -- Scharnhorst Ast & Kennard, P.C. and The
Hodges Law Firm -- filed a billion-dollar class action lawsuit
against the top five baby bottle manufacturers:
1. Avent America,
2. Evenflo,
3. Gerber,
4. Handi-Craft (Dr. Brown's), and
5. Playtex
for their use of Bisphenol A in polycarbonate plastic baby
bottles and toddler training cups.
The lawsuit was filed in the United States District Court for
the District of Kansas pursuant to Kansas Consumer Protection
Laws on behalf of persons living in Kansas who purchased
polycarbonate plastic baby bottles, bottle liners and training
cups containing the chemical Bisphenol-A.
This is the third class action lawsuit filed by Mr. Weiss. Mr.
Weiss filed the first such lawsuit last spring in California
against the same baby bottle manufacturers and the lawsuit is
presently active in the Superior Court of Los Angeles County
before Judge Chaney. The second lawsuit was filed on April 30,
2008, in the United States District Court for the Western
District of Missouri.
Bisphenol-A or BPA was developed in the 1930s as a synthetic
estrogen, but it is used mostly today in polycarbonate plastic
as it can make plastic shatterproof. Studies have shown that
BPA can activate estrogen receptors that lead to the same
effects as the body's own estrogens. Exposure to BPA has been
linked to lowered sperm count and infertile sperm in men,
developmental toxicity, carcinogenic effects, and possible
neurotoxicity.
Infants are especially vulnerable and are believed to be at a
greater risk from the effects of BPA, which acts as a powerful
hormone that can interfere with an infant's normal brain and
sexual development.
Mr. Weiss and Rights For America say they are committed to
protecting infants and will not stop until the infants of
America are protected.
The suit is "Wilson et al et al v. Avent America, Inc. et al.,
Case Number: 2:2008cv02201," filed with the United States
District Court for the District of Kansas.
BEAR STEARNS: Study Finds that Employees Should Opt Out of Suit
---------------------------------------------------------------
Based on a recently completed study, The Sherman Law Firm
concluded that Bear Stearns employees with substantial losses
stand to obtain far greater monetary recoveries by opting out of
class actions and proceeding with individual lawsuits against
the fallen investment bank.
Class Actions
Beginning on March 17, 2008, a number of prominent class action
firms filed putative class action claims against Bear Stearns on
behalf of Bear Stearns employees.
A class action is a special type of lawsuit in which a group of
plaintiffs that share substantially similar legal claims against
one or more defendants band together in a single lawsuit. Class
actions are known as "representative actions," because one or
more plaintiffs are actually named in the class action
complaint. Along with their attorneys, these named plaintiffs
pursue the case as representatives for an entire defined class
(in this instance a class might consist of one or more
categories of Bear Stearns employees).
Most class action claims settle. The end result, however, is
that there often is not much money distributed to individual
class members. In a 2006 article, Lawsuitssearch.com stated:
"Often being part of a class action lawsuit is not financially
advantageous to an individual. Even though the defendant named
in the case may be required to pay out a large sum of money, one
individual who is part of the class action will only receive a
small portion of that sum."
A study published by NERA Economic Consulting supported the
statement of Lawsuitsearch.com. NERA reported that the average
settlement recovery in securities class actions in 2006 was only
2.2% of investor losses. Bear Stearns employees who suffered
devastating losses told The Sherman Law Firm that they would be
little helped by a class action settlement for 2.2% of aggregate
investor losses.
"Opt out" cases
While class action claims against Bear Stearns have received a
great deal of news coverage, articles on the right of Bear
Stearns employees to opt out are nearly impossible to find. For
this reason, it is not be surprising that many Bear Stearns
employees are unaware of the right to opt out of class action
litigation. In opting out, an individual is electing not to be
part of a class, not to be bound by rulings that affect the
class, and not to be forced to accept any class action
settlement. A Bear Stearns employee who decides to opt out
generally will hire his or her own lawyer and proceed against
Bear Stearns in an individual litigation.
Research shows that opt out plaintiffs pursuing their own cases
are generally faring much better than the 2.2 percent average
securities class action settlement in 2006. A prominent example
is the recent AOL Time Warner Class Action. In April 2007,
Oakbridge Insurance Services wrote in its "Insights" report that
AOL Time Warner opt-out plaintiffs reported recoveries that were
between 6.5 and 50 times higher than what plaintiffs received in
the class action settlement. Other sources indicate that the
average Time Warner opt-out investor recovered 20 times more
than the average class action investor.
It is too early to tell whether the huge advantage for AOL Time
Warner opt out plaintiffs will prove to be high or typical.
Still, Oakbridge noted that, as a whole, the "the elevated
percentage of investment loss recoveries in the opt-out cases"
is a concern to class action defendants and to D&O insurers.
Conclusion
The study underlying this release was intended to compare the
relative merits of class action litigation versus opt out
litigation for Bear Stearns employees. Based on statistical
evidence from NERA and the outcomes of prominent securities
class action, the only reasonable conclusion is that Bear
Stearns employees with substantial losses have a dramatically
better chance to recover a higher percentage of losses in
individual opt out cases rather than as participants in class
actions.
Disclaimer
Because the study was statistically based, it does not take into
account individual circumstances such as quality of counsel, and
facts which may be unique to any individual. Bear Stearns
employees should consult with an attorney about pursuing claims
as part of a class action or through individual litigation.
For more information, contact:
Brett D. Sherman, Esq.
The Sherman Law Firm
152 Woodland Road
Demarest, NJ 07627
Phone: 201-723-9470
e-mail: information@shermanlawyers.net
Web site: http://www.shermanlawyers.net
CANADA: Intrusive Electricity-Use Law Challenged in B.C. Suit
-------------------------------------------------------------
The City of Coquitlam is facing a class-action complaint filed
in the Supreme Court of British Columbia challenging its
"Intrusive Electricity-Use Law," CourtHouse News SERvice
reports.
According to the complaint, a City of Coquitlam ordinance
unconstitutionally allows warrantless searches of private homes
that use a lot of electricity, on mere suspicion that the
residents are using the power to grow marijuana.
The plaintiffs claim the British Columbia Hydro and Power
Authority has no right to report such electricity consumption to
the Mounties.
The complaint states that BC Hydro identified the Property to
Coquitlam as being a marijuana grow operation based on the rate
of electricity consumption and it was based solely on this
information that Coquitlam invoked the By-Law against the
plaintiffs.
The plaintiffs had an expectation of privacy over and a right to
privacy in their personal information, including without
limiting the generality of the foregoing, the amount and
patterns of consumption of electricity at the property, gathered
and held by BC Hydro.
This action is brought on behalf of a proposed class of persons
with similar claims pursuant to the provisions of the Class
Proceedings Act, RSBC 1996, c.50.
The plaintiffs ask the court for:
(a) general, aggravated, special, exemplary and punitive
damages for invasion of privacy, trespass, negligent
misrepresentation, breach of contract, inducement of
breach of contract and interference with contractual
relations;
(b) a declaration that the By-Law is ultra vires;
(c) a declaration that the By-Law is unconstitutional
and unlawful and, therefore, of no force and effect;
(d) a declaration that the inspection was unconstitutional
and unlawful;
(e) damages in the total amount of all fees, fines and
other amounts unlawfully charged to the plaintiffs by
the defendants;
(f) an accounting of all monies paid by the plaintiffs to
the defendants as aforesaid;
(g) a declaration of trust in favor of the plaintiffs in
the full amount of the money paid to the defendants;
(h) an order for restitution;
(i) repayment of all amount paid under a mistake of law;
(j) costs, including special costs;
(k) interest pursuant to the Court Order Interest Act, RSBC
1996. c. 79; and
(l) such further and other relief as the court may seem
just.
The suit is "Nicola Monaco et al. v. City of Coquitlam et al.,
Case No. S-083289," filed in the Supreme Court of British
Columbia.
Representing the plaintiffs are:
Alexander Markham-Zantvoort, Esq.
Comparelli & Company
510 Weest hastings Street
Vancouver, British Columbia V6B 1L8
Phone: 604-683-6888
Fax: 604-683-4497
CENTRO PROPERTIES: To Fight AUD100-Million Lawsuit by IMF
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Centro Properties Group and Centro Retail Group say that they
will vigorously defend themselves in a class action lawsuit
filed against them, according to Melbourne Herald Sun.
Centro Properties said in a statement that it "will vigorously
defend the proceeding in the interests of its securityholders."
Melbourne Herald recounts that the class action has been brought
against the troubled property group, and CPT Manager Ltd -- the
responsible entity for Centro Property Trust -- in the Federal
Court in Melbourne. The shareholder class action against the
property fund, with a claim value of at least AUD100 million,
was commenced by litigation funder IMF Australia Ltd.
"The claims relate to alleged misleading and deceptive conduct
and breaches by (Centro) of its continuous disclosure
obligations between 9 August 2007 and 15 February 2008," IMF
said on May 9, 2008.
The shareholder claim, pursued by legal firm Maurice Blackburn,
will seek compensation over the price paid for securities
inflated by Centro's alleged failure to properly disclose its
circumstances.
"Last month, the maximum claim value was $100 million," IMF said
last week. "But since then the claim value has increased
materially."
Melbourne Herald relates that last week, Centro was thrown
another lifeline by its lenders with debt maturities now
extended to December 15, 2008, including AUD2.3 billion owed to
a syndicate of Australian banks and US$450 million
(AUD478.06 million) owed to US private placement noteholders.
Centro and some of its subsidiaries have provided security for
the debt by way of fixed and floating charges and some US real
estate, the report points out.
To close the debt deal, a series of conditions must be met by
May 30, 2008, including Centro's creditors establishing a
consent process for refinancing and how proceeds from asset
sales are distributed, Melbourne Herald says.
As well, by May 30, Centro must have finalized a AUD155-million
"liquidity facility" to pay for capital expenditure, adviser
fees and higher lender costs.
Melbourne Herald notes that also tied to last week's
announcement is another two obligations of US$1.1 billion each
(AUD1.2 billion), owed by Centro and Centro Retail Trust on
their U.S. joint venture, which will also be pushed back to the
December 15 deadline from September 30. The rollover of that
joint venture debt also is contingent on the conditions set out
in the deal being inked by the May 30 deadline.
Melbourne Herald recalls that Centro's troubles became apparent
in December last year, sending its shares tumbling 80% when it
announced thatit was struggling with the leverage on its 800-
strong property portfolio spanning Australia, New Zealand and
the United States. As part of its survival plan, Centro is
fielding offers for two of its unlisted property portfolios, the
Australia Wholesale Fund and its America Fund.
In March 2008, Melbourne Herald further recounts, IMF managing
director John Walker said more transparency was needed in a
market that lacked liquidity. He said Centro had failed to
disclose its short-term debt and, when it was disclosed, the
price of the stock dropped significantly. Mr. Walker said
investors would not have bought the stock during the non-
disclosure period had they been fully informed.
CHARLIE'S PRODUCE: Recalls Cantaloupe for Possible Health Risk
--------------------------------------------------------------
Charlie's Produce of Spokane, Washington, is recalling Charlie's
Produce Brand Cut Cantaloupe Products because they have the
potential to be contaminated with Salmonella, an organism which
can cause serious and sometimes fatal infections in young
children, frail or elderly people, and others with weakened
immune systems.
Healthy persons infected with Salmonella often experience fever,
diarrhea (which may be bloody), nausea, vomiting and abdominal
pain. In rare circumstances, infection with Salmonella can
result in the organism getting into the bloodstream and
producing more severe illnesses such as arterial infections
(i.e., infected aneurysms), endocarditis and arthritis.
The products recalled by Charlie's Produce Spokane include the
following fruit items containing cut cantaloupe:
Retail Products:
* Cut Fruit 4 Section – 40oz
* Cut Cantaloupe – 24oz, 16oz, 8oz
* Cut Honeydew/Cantaloupe - 16oz
* Mixed Fruit –24oz, 16oz, 8oz
* Rainbow - 24oz, 16oz, 8oz
* Cut Fruit Tray Deli – 12', 8'
* Cut Fruit Tray - 76oz, 40oz 8'
* Grab & Go Fruit Tray - 16oz
Foodservice Products:
* Cut Cantaloupe – 20lb, 64oz
* Cut Mixed Fruit – 20lb, 64oz
These products containing cantaloupe were distributed in Eastern
Washington, Idaho, and Montana to retail stores, delis, and
foodservice institutions.
Products are branded with the Charlie's Produce name and logo,
in a hard plastic clamshell, with a "Use By" date of "3 07"
through "3 29" stamped on the bottom of the container.
No illnesses have been reported to date.
Cantaloupe used in these products may have been supplied from
Agropecuaria Montelibano, a Honduran grower and packer, to
Charlie's Produce Spokane. This recall was initiated when the
U.S. Food and Drug Administration issued an import alert
regarding cantaloupe from this grower, because, based on current
information, fruit from this company appears to be associated
with a Salmonella Litchfield outbreak in the United States and
Canada.
Consumers who have purchased these products are urged to return
them to the place of purchase for full refund. Customers with
questions may contact the company through:
Mike Ruff
Food Safety Director
Phone: 206-625-1412 (Monday – Friday)
CINCINNATI BELL: Denies Claims in Anthem Demutualization Lawsuit
----------------------------------------------------------------
Cincinnati Bell, Inc., denied all allegations that were asserted
in a class-action complaint filed in the U.S. District Court for
the Southern District of Ohio, according to the company's May 6,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2008. The suit
alleges that Cincinnati Bell defrauded policyholders of 459,223
shares of Anthem common stock when defendant Anthem Insurance
Cos., Inc., demutualized.
Also named as defendants in the suit are:
-- Broadwing IT Consulting, Inc.
-- BRCOM Inc.
-- Cincinnati Bell Any Distance, Inc.,
-- Cincinnati Bell Long Distance, Inc.,
-- Cincinnati Bell Directory, Inc.,
-- Cincinnati Bell Public Communications, Inc.,
-- Zoomtown.com, Inc.,
-- Cincinnati Bell Entertainment, Inc.,
-- Cincinnati Bell Wireless Company,
-- Cincinnati Bell Wireless, LLC,
-- Cincinnati Bell Technology Solutions, Inc.,
-- Cincinnati Bell Telecommunications Services, Inc.,
-- Cincinnati Bell Telecommunications Services, LLC,
-- Cincinnati Bell Supply Company,
-- Enterprise IT Consulting, LLC,
-- Anthem Inc. n/k/a Wellpoint, Inc., and
-- Community Insurance Co. f/k/a Community Mutual
Insurance, Co.
This is a class action brought under the court's diversity
jurisdiction as expanded by the Class Action Fairness Act of
2005 asserting state common law claims for breach of contract,
conversion and misappropriation, aiding and abetting conversion
and misappropriation, breach of fiduciary duties, aiding and
abetting breach of fiduciary duties, and breach of agency
agreement seeking compensatory and punitive damages and other
appropriate relief (Class Action Reporter, Nov. 29, 2007).
Policyholders bring this action on behalf of individuals who
were named as insured persons covered under the Group Policy, or
who were members of a named group of insured persons covered
under the Group Policy, to recover the value of 459,223 shares
of Anthem common stock that should have been paid to them upon
the demutualization of Anthem Insurance, but which shares of
stock were improperly paid to and kept by Broadwing and its
subsidiaries and affiliates instead.
The plaintiffs pray that the court:
-- issue an order certifying the case as a class action
pursuant to Rule 23(b)(3) of the Fed.R.civ.P., and
certifying the class as alleged and defined;
-- order broadwing and its subsidiaries to provide the
class members with an accounting of the Anthem shares
sold and the net proceeds received from the stock sales;
-- order Anthem to specifically perform its obligations
under insurance law and under the relevant agreements
between its predecessors in interest and CBI's
predecessors in interest, and thereupon issue,
distribute and deliver 918,446 shares of WellPoint
common stock to and among the class members to account
for the 2-for-1 stock split that occurred after Jan.
2002;
-- grant preliminary and permanent injunctive relief in
favor of plaintiffs in the form of orders requiring
defendants, and each of them, to conform their conduct
to the terms of the specific performance order prayed
for;
-- award plaintiffs compensatory damages to be paid by
defendants and each f them, jointly and severally, with
respect to each claim for relief in amounts ranging
between $23.4 million and $75 million to be determined
from the evidence in accordance with law;
-- award plaintiffs punitive damages in amounts ranging
between $50 million and $150 million to be determined
from the evidence in accordance to law;
-- award plaintiffs their costs and expenses of this action
including reasonable attorneys' fees, together with pre-
judgment and post-judgment interest at the maximum rate
allowed by law; and
-- grant such other and further relief as the court may
deem just and proper.
In February 2008, Cincinnati Bell filed a response in which it
denied all liability in the matter and raised a number of
defenses.
The suit is "Wayne Stapp et al. v. Broadwing, Inc. et al., Case
No. 1:07-cv-00970," filed in the U.S. District Court for the
Southern District of Ohio.
Representing plaintiffs are:
Eric H. Zagrans, Esq. (eric@zagrans.com)
Zagrans Law Firm
474 Overbrook Road
Elyria, Ohio 44035
Phone: 440-452-7100
- and -
Dennis P. Barron, Esq. (DennisPBarron@aol.com)
582 Torrence Lane
Cincinnati, Ohio 45208
Phone: 513-871-2369
CLIMATE MASTER: Faces Consumer Fraud Litigation in Illinois
-----------------------------------------------------------
Climate Master, Inc., a unit of LSB Industries, Inc., is facing
a purported class action lawsuit filed in the Illinois state
district court in September 2007, alleging that certain
evaporator coils sold by Climate Master in Illinois from 1990 to
approximately 2003 were defective, according to LSB Industries'
May 6, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2008.
The complaint requests certification as a class action for the
State of Illinois, which request has not yet been heard by the
court.
The plaintiff asserts claims based upon negligence, strict
liability, breach of implied warranties, and the Illinois
Consumer Fraud and Deceptive Business Practices Act.
Climate Master has timely filed its pleadings to remove this
action to federal court. It has also filed its answer denying
the plaintiff's claims and asserting several affirmative
defenses.
LSB Industries, Inc. -- http://www.lsb-okc.com/-- is a
diversified holding company, which operates through its wholly
owned subsidiary, ThermaClime, Inc., and its subsidiaries. The
Company operates in two segments: Climate Control and Chemical.
Climate Control business is engaged in the manufacturing and
selling of a range of heating, ventilation and air conditioning
products for use in commercial and residential new building
construction, renovation of existing buildings and replacement
of existing systems. Chemical business is engaged in the
manufacturing and selling of chemical products produced from
plants in Texas, Arkansas and Alabama for the industrial, mining
and agricultural markets.
DISCOVERY LABS: Appeals Court Upholds Surfaxin Suit Dismissal
-------------------------------------------------------------
On April 29, 2008, the U.S. Court of Appeals for the Third
Circuit affirmed a lower court's dismissal of the plaintiffs'
285-paragraph complaint, which alleged that Discovery Labs
misled investors about the prospects for regulatory approval of
its lead product, Surfaxin, for the prevention of Respiratory
Distress Syndrome in premature infants.
On May 1, 2006, Hal Unschuld filed a lawsuit in the U.S.
District Court for the Eastern District of Pennsylvania,
individually and purportedly on behalf of a class of the
company's investors who purchased its publicly traded securities
between Dec. 28, 2005, and April 25, 2006 (Class Action
Reporter, June 15, 2006).
The suit was filed against the company and its chief
executive officer, Robert J. Capetola. The suit alleged
violations of Section 10(b) of the U.S. Securities Exchange Act
of 1934, Rule 10b-5 promulgated thereunder and Section 20(a) of
the Exchange Act in connection with various public statements
made by the company.
The plaintiff sought an order wherein the suit may proceed as a
class action and an award of compensatory damages in favor of
the plaintiff and the other class members in an unspecified
amount, together with interest and reimbursement of costs and
expenses of the litigation and other equitable or injunctive
relief.
The company was notified that two additional class action suits
seeking the same relief have since been filed in the U.S.
District Court for the Eastern District of Pennsylvania,
although the company has not been served with a complaint in
these actions.
All these lawsuits were consolidated.
On July 25, 2006, the U.S. District Court for the Eastern
District of Pennsylvania issued an order appointing the Mizla
Group as lead plaintiff in "In re Discovery Laboratories
Securities Litigation, No. 06-1820 (SD)." The court also
approved the appointment of Chimicles & Tikellis
LLP as lead counsel. On Aug. 10, 2006, at the court's mandate,
a consolidated amended complaint was filed.
On Sept. 14, 2006, the defendants filed a motion to dismiss the
consolidated amended complaint, and, in an order dated Nov. 1,
2006, the district court granted that motion while giving
the plaintiffs leave to file an amended complaint.
On Nov. 30, 2006, the second consolidated amended complaint was
filed against the company, CEO Capetola, and its former chief
operating officer, Christopher J. Schaber. It sought an order
that the suit proceed as a class action and an award of
compensatory damages in favor of the plaintiffs and the other
class members in an unspecified amount, together with interest
and reimbursement of costs and expenses of the litigation and
other equitable or injunctive relief.
On March 19, 2007, the court granted the company's motion to
dismiss the second consolidated amended complaint. On April 10,
2007, the plaintiffs filed a Notice of Appeal with the U.S.
District Court for the Eastern District of Pennsylvania.
Subsequently, the Third Circuit upheld the earlier rulings by
the U.S. District Court for the Eastern District of
Pennsylvania.
Robert L. Hickok and Gay Parks Rainville, partners with Pepper
Hamilton LLP, led the team defending Discovery Labs. The team's
extensive motions to dismiss pointed to voluminous public
documents that refuted the plaintiffs' claims against Discovery
Labs.
"Winning this type of litigation is a significant victory for
our client," said Mr. Hickok. "It should also help other
biotech start-ups that, like Discovery Labs, fully comply with
the securities laws but suffer a set-back in their efforts to
obtain regulatory approval of a new medicine. Development-stage
companies operate in an uncertain environment. Any bump along
the road to regulatory approval can adversely affect their stock
price. But, as the courts deciding the claims against Discovery
Labs recognized, such bumps, alone, do not signify securities
fraud."
Mary B. Templeton, Senior Vice President and Deputy General
Counsel of Discovery Labs, commented, "We are pleased that our
counsel on this matter, Pepper Hamilton, has effectively
presented our arguments, and that both the District Court and
the Third Circuit have recognized the quality of our disclosures
and dismissed this lawsuit in its entirety."
Ms. Rainville noted that "Pepper Hamilton's extensive experience
working with biotech and pharmaceutical clients makes us
particularly well-suited to defend these companies when they're
faced with this type of litigation. Because we know and
understand the drug development and regulatory approval
processes, we can effectively provide the court with the context
it needs for fairly assessing the disclosures at issue."
The suit is "In re Discovery Laboratories Securities Litigation,
Case No. 2:06-cv-01820-SD," filed in the U.S. District Court for
the Eastern District of Pennsylvania under Judge Stewart
Dalzell.
Representing the plaintiffs are:
James R. Malone, Esq. (jamesmalone@chimicles.com)
Joseph G. Sauder, Esq. (josephsauder@chimicles.com)
Chimicles & Tikellis LLP
361 West Lancaster Avenue
Haverford, PA 19401
Phone: 610-642-8500
Representing defendants are:
Michelle M. Crimaldi, Esq. (crimaldim@pepperlaw.com)
Robert L. Hickok, Esq. (hickokr@pepperlaw.com)
Christopher J. Huber, Esq. (huberc@pepperlaw.com)
Gay Barlow Parks Rainville, Esq.
(rainvilleg@pepperlaw.com)
Pepper Hamilton LLP
3000 Two Logan Square, 18th and Arch Streets
Philadelphia, PA 19103-2799
Phone: 215-981-4000
215-981-4583
215-981-4446
Fax: 215-981-4750
ELI LILLY: Faces US & Canadian Suits Over Zyprexa Effects, Sale
---------------------------------------------------------------
Eli Lilly and Co. faces several purported class action suit in
the U.S. and Canada over the side effects and marketing of
Zyprexa, according to the company's May 6, 2008 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2008.
U.S. Lawsuits
In 2005, two lawsuits were filed in the U.S. District Court for
the Eastern District of New York purporting to be nationwide
class action suits on behalf of all consumers and third-party
payors, excluding governmental entities, which have made or will
make payments for their members or insured patients being
prescribed Zyprexa.
These actions have now been consolidated into a single lawsuit,
which is brought under certain state consumer protection
statutes, the federal civil Racketeer Influenced and Corrupt
Organizations statute, and common law theories, seeking a refund
of the cost of Zyprexa, treble damages, punitive damages, and
attorneys' fees.
Two additional lawsuits were filed in the Eastern District of
New York in 2006 on similar grounds.
In 2007, The Pennsylvania Employees Trust Fund brought claims in
state court in Pennsylvania as insurer of Pennsylvania state
employees, who were prescribed Zyprexa on similar grounds as
described in the New York cases.
In general, these lawsuits allege that the company inadequately
tested for and warned about side effects of Zyprexa and
improperly promoted the drug.
Canadian Lawsuits
In early 2005, the company was served with four lawsuits seeking
class action status in Canada on behalf of patients who took
Zyprexa.
One of these four lawsuits has been certified for residents of
Quebec, and a second has been certified in Ontario and includes
all Canadian residents, except for residents of Quebec and
British Columbia.
The allegations in the Canadian actions are similar to those in
the litigation pending in the U.S.
The company reported no further developments in the cases.
Eli Lilly and Co. -- http://www.lilly.com/-- discovers,
develops, manufactures and sells products in one business
segment, pharmaceutical products. The Company also has an
animal health business segment. It manufactures and distributes
its products through owned or leased facilities in the U.S.,
Puerto Rico and 25 other countries. Eli Lilly and Company's
products are sold in approximately 135 countries. The Company
also conducts research to find products to treat diseases in
animals and to increase the efficiency of animal food
production. Its principal products include Neurosciences
products, Endocrinology products, Oncology products,
Cardiovascular products, Animal health products and Other
pharmaceuticals.
ELI LILLY: N.Y. Court Dismisses Consolidated Securities Lawsuit
---------------------------------------------------------------
The U.S. District Court for the Eastern District of New York
dismissed a consolidated securities fraud litigation pending
against Eli Lilly and Co.
Initially, two cases were filed against the company and various
current and former directors, officers and employees. The suits
are:
-- "Smith et al. v. Eli Lilly and Company et al.," filed
on March 28, 2007, and
-- "Valentine v. Eli Lilly and Company et al.," filed on
April 5, 2007.
The suits have been consolidated under the caption, "In re Eli
Lilly and Company Securities Litigation."
In August 2007, the lead plaintiffs filed a consolidated amended
complaint, seeking certification of a putative class of
purchasers of the company's stock from Aug. 1, 2002, through
Dec. 22, 2006.
The complaint alleges that the defendants made false and
misleading statements regarding Zyprexa in violation of the U.S.
Securities Exchange Act of 1934, and seeks unspecified
compensatory damages and the costs of suit, including attorneys'
fees.
In October 2007, the defendants filed a motion to dismiss the
consolidated amended complaint. That motion has been converted
in part to a motion for summary judgment, and a hearing on the
motion was scheduled in March 2008.
In April 2008, the court granted summary judgment in favor of
all defendants, dismissing the action, according to the
company's May 6, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2008.
Eli Lilly and Co. -- http://www.lilly.com/-- discovers,
develops, manufactures and sells products in one business
segment, pharmaceutical products. The Company also has an
animal health business segment. It manufactures and distributes
its products through owned or leased facilities in the U.S.,
Puerto Rico and 25 other countries. Eli Lilly and Company's
products are sold in approximately 135 countries. The Company
also conducts research to find products to treat diseases in
animals and to increase the efficiency of animal food
production. Its principal products include Neurosciences
products, Endocrinology products, Oncology products,
Cardiovascular products, Animal health products and Other
pharmaceuticals.
ELI LILLY: Indiana Court Still to Certify Racial Bias Case
----------------------------------------------------------
Eli Lilly and Co. continues to face a purported class action
suit filed in the U.S. District Court for the Southern District
of Indiana for alleged racial discrimination, according to the
company's May 6, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2008.
The suit was filed in April 2006 by several workers of the drug
company who allegedly experienced racial discrimination (Class
Action Reporter, Nov. 2, 2007). Three former and one current
Eli Lilly employee alleged that the company paid black employees
less than their white counterparts, passed them over for
promotions and verbally abused them.
The alleged discrimination dates back to 2003. One of the
plaintiffs is Cassandra Welch, who was fired in mid-2004 for an
unrelated reason.
The suit is seeking class action on behalf of more than 1,000
black employees. It is asking unspecified damages, lost
compensation and an order enjoining Lilly against future
discrimination.
The other plaintiffs are current sales representative, Sheryl A.
Davis of Memphis, Tennessee; and two former sales reps, Jarmaine
Bromell of Philadelphia and Raynard Tyson of North Carolina.
In November 2007, the plaintiffs amended their original
complaint to add 50 new plaintiffs, as well as the national and
local chapters of the National Association for the Advancement
of Colored People.
Under the current schedule, the plaintiffs are to file their
class certification motion in April 2009.
The suit is "Welch et al. v. Eli Lilly & Company, Case No. 1:06-
cv-00641-RLY-VSS," filed in the U.S. District Court for the
Southern District of Indiana, Judge Richard L. Young, presiding.
Representing the plaintiffs are:
Joshua Rose, Esq.
Terri N. Marcus, Esq.
David L. Rose, Esq.
Rose & Rose, P.C.
1320 19TH ST., N.W., Suite 601
Washington, DC 20036
Phone: 202-331-8555
Fax: 202-331-0996
e-mail: daver@roselawyers.com
GOOGLE: California Suit Filed on Defrauded Phone Users' Behalf
--------------------------------------------------------------
Google Inc. is facing a class-action complaint filed in the
Superior Court of the State of California for the County of
Santa Clara alleging it aids and abets consumer fraud by
allowing third-party cell phone aggregators and other
unscrupulous businesses to use its "Google AdWords" program to
surreptitiously bill cell-phone users for services they do not
want and never ordered, CourtHouse News Service reports.
Named plaintiff Jenna Goddard brings this action on behalf all
persons or entities who suffered damages as a result of clicking
on a Google AdWords advertisement for mobile subscription
services which linked to a Fraudulent Mobile Subscription
Services Web site.
This case arises from the ever-increasing computerization of
cellular telephones. The cell phones used and owned by
Plaintiff and the other class members are sophisticated
electronics equipment and contain many (if not most) of the same
capabilities and equipment as traditional desktop computers, as
well as cellular radio signal processing technology.
This computerization means that most modem cellular telephones
are capable of transacting commerce through a variety of
functionalities, including -- most significantly for present
purposes -- "premium" text message services. These services,
also known as "mobile subscription services" and "mobile
content" include products that range from the basic (customized
ringtones for use with cell phones, sports score reports,
weather alerts, stock tips, horoscope services, and the like) to
those requiring more advanced capabilities (such as direct
payment services, interactive radio and participatory
television).
The plaintiff wants the court to rule on:
(a) whether class members are third party beneficiaries of
the content policy incorporated into Google's
Advertising Terms;
(b) whether Google breached its own Advertising Terms by
allowing the Fraudulent Mobile Subscription Services to
continue to use the AdWords program;
(c) whether Google undertook a duty to protect class
members from misleading landing pages used by the
Fraudulent Mobile Subscription Services;
(d) whether Google breached its duty to protect class
members from misleading landing pages used by the
Fraudulent Mobile Subscription Services;
(e) whether these practices violate the Computer Fraud and
Abuse Act (18 U.S.C. Section 1030);
(f) whether Google aided and abetted the commission of
fraud and trespass to chattels by the Fraudulent Mobile
Subscription Services;
(g) whether Google knew about the practices and income
of the Fraudulent Mobile Subscription Services;
(h) whether Google consciously avoided knowing about the
practices and income of the Fraudulent Mobile
Subscription Services; and
(i) whether the plaintiff and the class are entitled to
relief.
The plaintiff asks the court for:
-- an order certifying the class, directing that this
case proceed as a class action, and appointing plaintiff
and her counsel to represent the class;
-- equitable and injunctive relief against the defendant,
including a constructive trust, an accounting, and an
injunction prohibiting the continued unlawful business
practices alleged;
-- damages;
-- restitution and disgorgement of all ill-gotten gains
unjustly obtained and retained by the defendant through
acts complained of; and
-- an order granting reasonable attorneys' fees and costs,
as well as pre- and post-judgment interest at the
maximum legal rate.
The suit is "Jenna Goddard et al. v. Google Inc., Case No.
108CV222658," filed in the Superior Court of the State of
California for the County of Santa Clara.
Representing the plaintiffs are:
Alan Himmelfarb, Esq. (ahimmelfarb@kamberedelson.com)
KamberEdelson LLC
2757 Leonis Boulevard
Los Angeles, California 90058
Phone: 323-585-8696
- and -
Jay Edelson, Esq. (jedelson@kamberedelson.com)
Myles McGuire, Esq. (mmcguire@kamberedelson.com)
Ethan Preston, Esq. (epreston@amberedelson.com)
KamberEdelson LLC
53 West Jackson Boulevard, Suite 550
Chicago, Illinois 60604
Phone: 312-589-6370
INTERMUNE INC: Lung Drug "Actimmune" Prompts California Lawsuit
---------------------------------------------------------------
Intermune Inc. and Genentech Inc. are facing a class-action
complaint filed with the U.S. District Court for the Northern
District of California alleging it defrauded the public of
millions of dollars by pushing the drug Actimmune for idiopathic
pulmonary fibrosis, through misrepresentations, CourtHouse News
Service reports.
This is a proposed nationwide class action on behalf of
consumers and other end-payors of Actimmune -- a bioengineered
form of interferon-gamma, alleging fraud and deception in the
marketing and sale of Actimmune for scientifically unproven
purposes, primarily the treatment of idiopathic pulmonary
fibrosis.
Intermune CEO W. Scott Harkonen was criminally indicted for his
role in the alleged fraud, according to the RICO class action.
The plaintiff brings this action pursuant to Rule 23 of the
Federal Rules of Civil Procedure on behalf of all individuals
and entities in the United States and its territories who, for
purposes other than resale, purchased, reimbursed, and paid for
Actimmune for the treatment of IPD during the period from May 5,
1998, through the present.
the plaintiff wants the court to rule on:
(a) whether the defendants promoted the use of Actimmune
for unproven and ineffective uses;
(b) whether the defendants marketed Actimmune to physicians
for the treatment of IPF;
(c) whether the prescriptions of Actimmune for IPF were
supported by medical necessity and conferred any
medical benefit;
(d) whether the defendants engaged in a pattern or
deceptive, fraudulent, and unfair activity intended to
deceive and defraud the plaintiff and the class
members;
(f) whether the defendants trained, authorized, and
encouraged sales representatives to actively market
Actimmune as a treatment for IPF, a disease for which
Actimmune was medically unproven or ineffective, in
order to induce physicians to prescribe Actimmune;
(g) whether the defendants' fraudulent and unlawful
promotion of Actimmune, an unapproved and unproven
treatment for IPF, caused consumers and third-party
payors to pay for Actimmune which the patients did not
need and which provided them no medical benefit;
(h) whether defendants' publications and dissemination of
various press releases, faxes to physicians, and direct
mailings to patients caused consumers and third-party
payors to pay for Actimmune in circumstances in which
there was no medical benefit conferred on the patients
taking Actimmune; and
(i) whether the defendants are liable to the plaintiff and
the class members for damages for conduct actionable
under various state law provisions for unjust
enrichment.
The plaintiff demands judgment:
-- on the RICO claims, three times the damages the
plaintiff has sustained as a result of the defendant's
conduct, such amount to be determined at trial, plus
the plaintiff's costs in this suit, including reasonable
attorneys' fees;
-- on the claims under California Business and
Professions Code Section 17200, et seq., monetary relief
in the form of actual damages, restitution, and
disgorgement of ill-gotten gains, punitive or treble
damages, and such other relief as provided by law, such
amount to be determined at trial, plus plaintiff's costs
in this suit, including reasonable attorney's fees;
-- on the consumer protection act claims,
compensatory damages, three times the damages plaintiff
has sustained as a result of defendants' conduct, and
such other relief as provided by the statutes cited,
such amount to be determined at trial, plus plaintiff's
costs in this suit, including reasonable attorney's
fees;
-- on the claim for unjust enrichment, recovery in
the amount plaintiff's and the class' payment for
Actimmune based on prescriptions that were not supported
by medical necessity or benefit, such amount to be
determined at trial, plus plaintiff's costs in the suit,
including all reasonable attorney's fees;
-- awarding prejdugment and post-judgment interest on such
monetary relief;
-- awarding other appropriate equitable relief;
-- awarding plaintiffs their costs and expenses in the
litigation, including reasonable attorneys' fees and
expert fees; and
-- awarding plaintiffs such other and further relief as may
be just and proper under the circumstances.
The suit is "Deborah Jane Jarrett, et al. v. Intermune Inc.,
Case No. C08-02376," filed with the U.S. District Court for the
Northern District of California.
Representing the plaintiffs is:
Reed R. Kathrein, Esq. (reed@hbsslaw.com)
Hagens Berman Sobol Shapiro, LLP
715 Hearst Avenue, Suite 202
Berkeley, CA 94710
Phone: 510-725-3000
Fax: 510-725-3001
IPO LITIGATION: N.Y. Court Denies Multiple Dismissal Motions
------------------------------------------------------------
The U.S. District Court for the Southern District of New York
denied several motions that sought for the dismissal of the
matter "Initial Public Offering Securities Litigation."
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 Judge Shira A. Scheindlin of the U.S.
District Court for 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.; and
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, 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 Dec. 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 Nov. 12, 2007, certain of the defendants in the focus cases
moved to dismiss the second consolidated amended class action
complaints.
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.
On March 26, 2008, the district court denied the motions to
dismiss except as to Section 11 claims raised by those
plaintiffs who sold their securities for a price in excess of
the initial offering price and those who purchased outside the
previously certified class period. Briefing on the class
certification motion was filed on April 22, 2008.
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. 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. 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)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
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