/raid1/www/Hosts/bankrupt/CAR_Public/080717.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, July 17, 2008, Vol. 10, No. 141
Headlines
ATLAS COLD: Ontario Court OKs $40MM Income Trust Suit Settlement
AUCTION COMPANIES: Calif. Suit Challenges Real Estate Auctions
BRINKER INT'L: Texas Judge Gives Chili's Tips Suit the Go-Ahead
CALPERS: Sued for Allowing Torrance City to Underfund Pension
DELL INC: Unpaid Overtime Wages Suit Gets Class Action Status
EYE CENTERS: Faces Lawsuit Over Use of FDA Unapproved Software
FRANKLIN BANCORP: Aug. 5 is Lead Plaintiff Application Deadline
GOOGLE INC: Suit Says Ads on Parked Domain Are Low Quality
INSURANCE COMPANIES: Sued by Kentucky County Over Unpaid Taxes
KENTUCKY: Two Counties Settle Jail Strip Search Lawsuits
KIA MOTORS: Penna. Superior Court to Hear Sephia Suit Appeal
LAWSON SOFTWARE: Faces Labor-Related Lawsuit in New York
PHILIPPINES: Journalists File Notice of Appeal in Peninsula Suit
QIAO XING: $2.4MM Securities Fraud Suit Deal Gets Final Approval
RIVERSIDE CEMENT: Faces Suit Over Hexavalent Chromium Emissions
SCOTTISH RE: Amended Suit to be Filed in N.Y. Securities Lawsuit
UBS FINANCIAL: Md. Court Dismisses Racial Discrimination Lawsuit
WISCONSIN: State Bar Exam Lawsuit Granted Class Action Status
New Securities Fraud Cases
FIRST AMERICAN: Brower Piven Files N.Y. Securities Fraud Suit
FRANKLIN BANCORP: Cohen Milstein Files Securities Suit in Texas
INDYMAC BANCORP: Bernard Gross Files California Securities Suit
MRV COMMUNICATIONS: Brower Piven Files Securities in California
SONOCO PRODUCTS: Brower Piven Files Securities Suit in S.C.
STATE STREET: Brower Piven Files Massachusetts Securities Suit
*********
ATLAS COLD: Ontario Court OKs $40MM Income Trust Suit Settlement
----------------------------------------------------------------
The Ontario Superior Court of Justice has approved a
CDN$40-million settlement in a purported class action lawsuit
against Atlas Cold Storage Holdings Inc., and others, over
allegations that the defendants misrepresented the earnings of
Atlas, causing damages to the plaintiffs.
The settlement provides that the defendants will pay
CDN$40 million to the class members in exchange for releases and
a dismissal of the class action suit. The defendants do not
admit any wrongdoing or liability on their part.
"This is an excellent result," said Harvey T. Strosberg, Q.C. of
Sutts, Strosberg LLP. "We are pleased that the court has
approved the settlement which is in the best interests of the
class members."
Case Background
The suit was filed in 2004 against Atlas Cold Storage Holdings
Inc., certain directors and officers of Atlas Holdings, certain
trustees of Atlas Cold Storage Income Trust, Ernst & Young LLP
and BMO Nesbitt Burns Inc., under Court File No. 04-CV-263289CP.
The claim is on behalf of all persons who purchased or acquired
Atlas Trust Units during the period between March 1, 2002, and
August 29, 2003, under the terms of a prospectus offering, on
the Toronto Stock Exchange, or in any other fashion, and held
some or all of those Trust Units at the close of trading on the
TSX on Aug. 29, 2003.
The statement of claim alleged that Atlas' net income for the
fiscal years ended 2001 and 2002 was overstated thereby causing
the Atlas Trust Units to trade at artificially high prices. It
also alleged that some of the defendants breached section 130 of
the Securities Act and that the defendants were negligent.
The suit seeks damages from the company -- the operating arm of
Atlas Cold Storage Income Trust -- several of its senior
directors and officers, and the trustees of the Trust (Class
Action Reporter, June 16, 2008).
For details, contact:
The Administrator, Atlas Class Action
Deloitte & Touche LLP
Suite 1400, 181 Bay Street
Toronto, ON M5J 2V1
Fax: 866-808-1384
e-mail: atlasclassaction@deloitte.ca
Web site: http://www.atlasclassaction.com/
Kirk Baert
Koskie Minsky LLP
20 Queen Street West
Suite 900, Box 52
Toronto, ON M5H 3R3
Phone: 888-723-4304
Fax: 416-997-3316
e-mail: atlasclass@kmlaw.ca
Joseph Groia
Groia & Company Professional Corporation
The Sterling Tower
372 Bay Street, Suite 1000
Toronto, ON M5H 2W9
Phone: 416-203-4471
Fax: 416-203-9231
e-mail: ksearman@groiaco.com
- and -
Harvey T. Strosberg, Q.C.
Stutts Strosberg LLP
600-251 Goyeau Street
Windsor, ON N9A 6V4
Phone: 888-460-0824
Fax: 866-316-5308
e-mail: atlasclassaction@strosbergco.com
AUCTION COMPANIES: Calif. Suit Challenges Real Estate Auctions
--------------------------------------------------------------
A lawsuit was filed in California Superior Court challenging
real estate auction practices, charging that some auction
companies engage in deceptive advertising and violate provisions
of federal law related to real estate closing services, Glenn
Roberts Jr. writes for Inman News.
"Many modern real estate auctions are nothing more than a bait-
and-switch scheme to lure hopeful buyers to submit offers that
can later be accepted or rejected by the lenders/sellers,
despite the general public's perception that once the auctioneer
declares, 'Sold,' the property is in fact sold," the lawsuit
states.
The lawsuit, which seeks class-action status, notes that there
has been a boom in the volume of foreclosed, lender-controlled
properties -- also known as real estate-owned or REO properties
-- sold at auction.
The lawsuit, filed last month on behalf of three individuals who
attended a real estate auction event in Southern California --
including one individual who is a RE/MAX real estate broker --
also asserts that auction companies "direct and require the use
of their settlement service providers and shift the cost of
sales, including commissions, from the lenders/sellers to the
consumers" in auction event signing rooms. "The
lenders'/sellers' representatives are not found in the signing
room to sign the contracts; rather they are just there (to) sell
loans and other settlement services," the lawsuit further
alleges.
According to Inman News, the lawsuit names as defendants several
auction companies -- including Real Estate Disposition Corp.;
LandAuction.com; DoveBid Inc.; AuctionHouse Real Estate
Disposition Services; Kennedy Wilson Auction Group Inc.; and
Auction Services International Florida 100 Realty Inc. -- as
well as lenders Countrywide Home Loans Inc. and GMAC Mortgage
LLC, and title and escrow companies -- including Benchmark
Escrow Inc., Landsafe Title of California Inc., and First
American Title Insurance Co.
Michael Davin, president of brokerage company CataList Homes,
which has a partnership with DoveBid Inc. to sell homes at
auction, said in a statement, "I can't comment specifically on
the case as I haven't read the documents. However, we will
stand firm and defend our auction practices as the reserve
auction method is an effective and fully legal sales process
utilized for hundreds of years in the sale of many types of
assets."
Stephanie Taylor, director of business development for the
Sacramento, Calif.-based AuctionHouse, told Inman News that her
company has not yet held an auction and she was surprised to
hear about the lawsuit.
The report explains that in a reserve auction, which is common
for real estate auctions, properties may ultimately not be sold
to the winning bidder if a reserve price -- which is typically
concealed during the auction process -- is not reached.
Inman News points out that real estate auction companies
typically state in materials presented to attendees that sales
are subject to lender approval, which means that winning bidders
may not ultimately get the property at the price of the winning
bid -- a lender may ask for a higher amount in order to complete
the sale.
According to the report, the lawsuit further charges that
auction companies use "fine print and covert documents at the
auction event that state, 'subject to lender confirmation,'
instead of truthfully saying, 'no sale is final today because
the lender/sellers are not onsite at the live auction.'" The
lawsuit also charges that the fees collected by auction
companies are in some cases unlawful under California real
estate laws.
According to the complaint, the auction companies and other
companies named in the lawsuit allegedly violated provisions of
the Real Estate Settlement Procedures Act related to prohibited
payment exchanges related to loan transactions and settlement
services and "requiring the use of certain settlement service
providers including . . . title insurance companies."
Shawn M. Olson, Esq., of Spainhour Law Group, which filed the
lawsuit on behalf of the auction attendees, said that there are
three proposed classes in the lawsuit:
(1) the first class is for real estate auction attendees,
(2) the second is for people who attended the auction and
entered a winning bid but ultimately did not purchase the
property, and
(3) the third class is for those who attended the auction and
actually purchased the property.
Mr. Olson said that there appears to be a systemic problem with
the practices at real estate auction companies. "There were a
lot of RE/MAX brokers who were complaining about the process of
these auctions and how they're unfair," he added.
The lawsuit could extend to tens of thousands of people if the
court grants it class-action status and could stretch back about
four years, Mr. Olson said.
The lawsuit also seeks to permanently enjoin the named
defendants from using the auction-marketing methods and to be
enjoined from violating unfair competition laws. Also, the
lawsuit seeks to restore "all funds acquired by means of any act
or practice declared by this court to be unlawful or fraudulent
or constitute unfair competition . . . or untrue or misleading
advertising," among other relief.
BRINKER INT'L: Texas Judge Gives Chili's Tips Suit the Go-Ahead
---------------------------------------------------------------
Judge Keith P. Ellison of the U.S. District Court for the
Southern District of Texas gave the go-ahead to a class-action
lawsuit accusing Brinker International Inc. of skimming tips
from servers at Chili's Grill & Bar concept, various reports
say.
Pegasus News Wire recounts that the lawsuit was first filed in
2002 with 56 plaintiffs. It accuses Brinker of cutting into the
tips of some 3,500 servers at its Chili's outlet.
According to the report, Brinker has spent the past six years
trying to split up or reduce the plaintiff group which has grown
to include up to 3,500 plaintiffs.
The Nation's Restaurant News relates that Judge Ellison ruled
last week that the action could now move forward.
In his 56-page memorandum and order, Judge Ellison rebuffed
Brinker's assertion that sharing servers' tips with expeditors
or quality assurance managers is a common practice within
casual-dining chains. Brinker even brought in a Cornell
professor who they called an expert on tipping.
However, the plaintiffs moved to strike the expert's testimony,
arguing that he is not an expert on tip sharing. The judge
agreed.
Judge Ellison did let stand Brinker's argument that it should be
allowed during the trial to show how many of the 3,500 class-
action participants actually shared their tips. Brinker
admitted in its defense that forcing servers to share tips is
illegal and said it made moves to stop the practice. But, the
court memorandum indicated, the casual-dining company did not
have a formal policy in place to prevent tip sharing until 2004.
The plaintiffs have argued that tip sharing continued even after
the policy was adopted.
Rex Burch, Esq., a lawyer for the plaintiffs, said it was
difficult to estimate how much money in damages his clients
stand to win if they are victorious. He speculated the sum to
be in the "several million" dollar range.
Mr. Burch also estimated that actual damages will probably be
derived by multiplying the number of plaintiffs by shift hours
worked over their years of service, times the applicable tip
credit in the states where the plaintiffs worked. Most states
allow employers to take a credit for workers who earn a tip as
part of their hourly wage.
Brinker International, Inc. -- http://www.brinker.com/-– is
principally engaged in the ownership, operation, development,
and franchising of restaurant concepts.
To contact Mr. Burch:
Richard J. Burch, Esq.
Bruckner Burch PLLC
1415 Louisiana Street, Suite 2125
Houston, TX 77002
Phone: 713-877-8788
Fax: 713-877-8065
CALPERS: Sued for Allowing Torrance City to Underfund Pension
-------------------------------------------------------------
A class action lawsuit has been filed against the California
Public Employees Retirement System for allowing the City of
Torrance to underfund the Torrance pension fund for five years,
which resulted in the pension fund being $129 million short,
CourtHouse News Service reports.
The complaint, filed in Superior Court, claims that CalPers
allowed Torrance to use an actuarial surplus of $16.4 million to
weasel out of paying that much into its employees' pension fund,
and never disclosed the book juggling for the five years it went
on -- from 1999 to 2004.
"In part as a result of years of skipped employer contributions
and the lack of assumed investment earnings on those skipped
contributions, the City Employees' Pension Fund has become
underfunded by $129 million, with both police officers' and fire
fighters' valuations showing funded ratios (assets/liabilities)
of only 76 percent and 78 percent, respectively," the complaint
states.
The plaintiffs in the suit are represented by Michael Conger,
Esq., of Rancho Santa Fe.
DELL INC: Unpaid Overtime Wages Suit Gets Class Action Status
-------------------------------------------------------------
U.S. Magistrate Judge Thomas Coffin of the U.S. District Court
for the District of Oregon granted class-action status to a
lawsuit filed against Dell Inc. over alleged denial of overtime
compensation to about 5,000 employees, Dan Zehr writes for the
Austin American-Statesman.
According to a Feb. 16, 2007, Class Action Reporter article,
sales representatives who work at the company's Roseburg,
Oregon, call center claim that Dell rips them off in a whole
host of ways, including:
-- routinely undercounting hours worked,
-- not paying employees for required meetings, and
-- deducting more time for lunch than employees actually
take.
The lawsuit alleges that Dell uses the Kronos timekeeping
system, but that the software is deeply flawed.
The company "regularly and routinely" does not record all hours
worked, and the only way to correct the record is to have a
supervisor make the change, the suit further claims. "This is
rarely successful," states the complaint, "either because the
supervisor does not make the correction or Kronos still fails to
adequately record the time."
The lawsuit charges that Dell has been aware of the problems for
years, but has yet to make any meaningful changes. It also
claims that Kronos automatically deducts one hour for lunch,
even though most employees at the call center take only a 30 or
45-minute break.
In addition, employees are required to show up for training
meetings that occur before their shift begins and that they are
not paid for their time.
According to the complaint, the end result is that Dell
routinely underpays its employees and manages to avoid paying
the overtime that many of the sales representatives would
otherwise receive.
Last week, Judge Coffin granted class-action status to the
lawsuit.
The judge ruled that most employees who worked at Dell's
domestic call centers from Feb. 8, 2004, to the present could
opt into the lawsuit. However, he denied class certification
for another part of the complaint tied to Oregon state law but
left open the option to re-file pending workers' participation
in the federal action.
According to Austin American-Statesman, the proposed class
covers consumer service representatives at current and former
Dell call centers in Oregon, Central Texas, Tennessee, Oklahoma
and Idaho.
A Dell spokesman declined to comment on the case, but the
company denied the claims in its court filings, the report
notes.
The suit is "Norman, et al. v. Dell, Inc., et al., Case No.
6:07-cv-06028-TC," filed in the U.S. District Court for the
District of Oregon, Judge Thomas M. Coffin presiding.
Representing the plaintiffs are:
Matthew L. Dameron, Esq. (dameron@sshwlaw.com)
George A. Hanson, Esq. (hanson@sshwlaw.com)
Stueve Siegel Hanson Woody LLP
330 W 47th Street, Suite 250
Kansas City, MO 64112
Phone: 816-714-7100
Fax: 816-714-7101
- and -
Derek C. Johnson, Esq. (djohnson@jclc.com)
Douglas G. Schaller, Esq. (dschaller@jclslaw.com)
Johnson Clifton Larson & Corson, P.C.
975 Oak Street, Suite 1050
Eugene, OR 97401
Phone: 541-484-2434
Fax: 541-484-0882
EYE CENTERS: Faces Lawsuit Over Use of FDA Unapproved Software
--------------------------------------------------------------
Eye centers in California are facing a class-action complaint
before the U.S. District Court for the Southern District of
California over the alleged use of lasers and software altered
for eye surgery without FDA approval, CourtHouse News Service
reports.
The named defendants in the complaint are:
-- TLC Vision Corp., d/b/a TLC Laser Eye Centers,
-- California Center For Refractive Surgery,
-- Laser Eye Center Medical Office,
-- Southwest Eye Care Centers,
-- Nidek Co.,
-- Nidek Technologies,
-- Manoj Motwani M.D.,
-- Gary Kawesch M.D.,
-- Linda Vu M.D.,
-- Joseph Lee M.D.,
-- Farzad Yaghouti M.D.,
-- Randa Garrana M.D.,
-- Thomas Tooma M.D.,
-- Paul Lee M.D.,
-- Keith Liang M.D.,
-- Antoine Garabet M.D.,
-- William Ellis M.D.,
-- Gregg Feinerman M.D.,
-- Michael Rose M.D.,
-- John Kownacki M.D.,
-- Steven Ma M.D., and
-- Estate of Glenn A. Kawesch M.D.
This is a class action suit brought on behalf of persons who
underwent Hyperopic (farsightedness) Laser in Situ Keratomilesis
(LASIK) and Hyperopic PhotoRefractive Keractectomy with Nidek
EC-5000 Excimer System (the Laser) within February 1996 to
Oct. 11, 2006, but who did not consent to and were not included
in an approved FDA clinical trial.
The complaint alleges that during the class period, the FDA had
not approved the safety and effectiveness of the Laser to
perform hyperopic corrections, i.e. the reduction or elimination
of farsightedness.
The plaintiffs want the court to rule on:
(a) whether defendants violated the California Protection
of Human Subjects in Medical Experimentation Act of the
California Health and Safety Code Section 24176 against
plaintiffs and members of the class;
(b) whether defendants committed fraudulent acts and
omissions against plaintiff and members of the class;
(c) whether defendants committed civil conspiracy against
plaintiff and members of the class;
(d) whether defendants are liable for medical negligence
against plaintiff and members of the class;
(e) whether defendants are liable for negligence per se
against plaintiffs and members of the class;
(f) whether defendants violated the Unfair Business
Practices Section 17200 et seq.; and
(g) whether the amount of additional revenues and profits
obtained by defendants are attributable to their
violations of the Unfair Business Practices Section
17200 et seq.
The plaintiffs ask:
-- that the court determine this action be maintained as a
class action pursuant to Rule 23 of the Federal Rules of
Civil Procedure, on behalf of the class designating
named plaintiffs as lead plaintiffs and plaintiffs'
counsel as lead counsel and certifying named plaintiffs
as proper class representatives;
-- for costs of suit, including reasonable attorney's fees
for prosecuting this action in the public interest;
-- that plaintiffs and the other members of the class be
granted other and further relief as the nature of the
case may require or the court deems just and proper;
-- that defendants be found to have failed to obtain each
plaintiff and each member of the class' informed consent
in violation of Section 24176 of the California Health
and Safety Code;
-- that defendants be ordered to pay each plaintiff and
each member of the class the maximum penalty pursuant to
California Health and Safety Code Section 24176;
-- that defendants be found to have engaged in unlawful,
unfair, and fraudulent competition in violation of
Section 17200 of the California Business and Professions
Code;
-- that the court order defendants to disgorge all monies
wrongfully obtained and all revenues and profits derived
by defendants as a result of their acts or practices as
alleged;
-- that defendants be ordered to make restitution to each
plaintiff and each member of the class pursuant to
California Business and Professions Code Sections 17203
and 17204;
-- that defendants be found to have engaged in a civil
conspiracy to defraud plaintiffs and the class;
-- that defendants be found to have committed negligence
and were negligent per se upon plaintiffs and the
class; and
-- for interest on all damages as allowed by the laws of
the State of California according to proof.
The suit is "Robert Perez, et al. v. Nidek Co., Ltd., et al.,
Case No. 08 CV 1261 BTM JMA," filed in the U.S. District Court
for the Southern District of California.
Representing the plaintiffs are:
Duane A. Admire, Esq. (DAdmire@san.rr.com)
Admire & Associates
3790 Via de la Valle, Suite 313
Del Mar, CA 92037
Phone: 858-350-5566
Fax: 858-350-1046
- and -
Amy J. Lepine, Esq.
Lepine Law Group
444 West C. Street, Suite 140
San Diego, CA 92101
Phone: 619-231-1337
Fax: 619-231-1330
FRANKLIN BANCORP: Aug. 5 is Lead Plaintiff Application Deadline
---------------------------------------------------------------
The law firm of Shalov Stone Bonner & Rocco LLP, which has filed
a securities fraud class action lawsuit on behalf of all
investors who purchased or otherwise acquired the common or
preferred stock of Franklin Bank Corp., in the period between
April 26, 2007, and May 1, 2008, inclusive, reminds investors
that August 5, 2008, is the deadline to ask the Court to appoint
you as a lead plaintiff in the class action.
The lawsuit is pending in the United States District Court for
the Southern District of Texas and names as defendants Franklin
and the Company's CEO and CFO during the Class Period.
According to the complaint, the defendants violated the
Securities Exchange Act of 1934. Specifically, the complaint
alleges that, during the Class Period, the defendants engaged in
a variety of accounting improprieties, including their admitted
failure to charge off uncollectible loans and to mark Franklin's
loans to market.
As a result of the misconduct alleged, defendants understated
the Company's delinquent, nonperforming, and uncollectable loans
and thereby misrepresented Franklin's financial condition and
results, including its overall and per-share profits and the
fair market value of its residential mortgage loan portfolio.
For more information, contact:
Ralph M. Stone, Esq.
Thomas G. Ciarlone, Jr., Esq.
Shalov Stone Bonner & Rocco LLP
485 7th Ave., Suite 1000
New York, NY 10018
Phone: 212-239-4340
Fax: 212-239-4310
Web site: http://www.lawssb.com/
GOOGLE INC: Suit Says Ads on Parked Domain Are Low Quality
----------------------------------------------------------
A lawyer has sued Google Inc. claiming that none of his ads on
parked domain names converted into leads, and that Google did
not provide an easy way to opt out of domain parking, Domain
Name Wire says, citing a report by Information Week.
The lawyer, according to Domain Name Wire, spent $136.11 on ads
on parked domains and error pages. The lawsuit relates that he
got 668 clicks and zero conversions.
The lawsuit, which seeks class action status, alleges that
"Google includes millions of parked domains and error pages that
have little or no content, and that result in practically zero
conversions, in both its Content Network and its Search Network.
Given the low quality of these parked domain and error pages,
advertisers would not want to spend their advertising budgets on
these distribution networks. However, Google designed its
network in such a way that it was virtually impossible to opt
out of the AdSense for Domains and/or AdSense for Errors
programs."
Domain Name Wire says that the lawyer apparently advertised his
services before Google allowed advertisers to opt-out of domain
parking.
Domain Name Wire opines that although there is fraud on domain
parking, the recently commenced lawsuit appears to be another
manufactured suit to milk Google for money. The report notes
that the article in Information Week does not suggest how the
lawyer's ads converted on other pages, and that only $136 worth
of ads on parked domains is hardly a fair sample size.
According to the report, a possible outcome of the lawsuit is
that Google may be forced to reveal more data about conversion
rates on parked domain names. The company has marketed that
parked domains produce similar results to other web sites in its
content network.
INSURANCE COMPANIES: Sued by Kentucky County Over Unpaid Taxes
--------------------------------------------------------------
On behalf of all Kentucky counties, Franklin County has filed a
class action lawsuit in the U.S. District Court for the Eastern
District of Kentucky claiming major insurance companies have
ducked taxes, CourtHouse News Service reports.
The named defendants in complaint are:
-- American International South Insurance Co.,
-- AIG Casualty Co.,
-- American General Assurance Co.,
-- American General Life Insurance Co.,
-- American General Life & Accident Insurance Co.,
-- Commerce & Industry Insurance Co.,
-- Granite State Insurance Co.,
-- Illinois National Insurance Co.,
-- Insurance Company of the State of Pennsylvania,
-- National Union Fire Insurance Company of Pittsburgh,
-- New Hampshire Insurance Co.,
-- United Guaranty Residential Insurance Company, and
-- Hartford Steam Boiler Inspection & Insurance Co.
This action is brought to remedy violations of state law and
local ordinance in connection with the defendants' collective
misconduct in the failure to remit insurance premium taxes to
Franklin County, Kentucky, and other similarly situated
political subdivisions of the Commonwealth of Kentucky.
Franklin County has previously imposed upon the defendants, and
other insurance companies insuring risks located in Franklin
County, the local government insurance premium license fee or
tax authorized and enabled pursuant to K.R.S. 91A.080 et seq.,
which license fee or tax hereafter will be referred to as LGPT.
The plaintiff alleges that software capable of assisting the
defendants, and other insurance companies doing business in the
Commonwealth of Kentucky, in accurately calculating, collecting,
and remitting of LGPT has been generally available on the retail
software market since before the beginning of the relevant time
period of this lawsuit, at commercially reasonable prices, and
upon information and belief was in use by insurance companies
doing business in the Commonwealth of Kentucky and elsewhere
during that time.
The plaintiff further alleges that in some instances, the
defendants may be charging and collecting the taxes from
policyholders insuring risks geographically located within
Franklin County or geographically located within the other
plaintiffs' class counties, but failing to pay LGPT owed to the
plaintiff or the respective plaintiffs' class member county, and
in some instances may be diverting or directing the funds of the
plaintiff or respective plaintiffs' class member counties to the
dominion and control of another Kentucky municipality.
The plaintiff brings this action pursuant to Rule 23 of the
Federal Rules of Civil Procedure, et seq., on behalf of all
Kentucky counties, charter counties, consolidated local
governments, or urban-county governments who:
i) have adopted and had in force a local government premium
tax pursuant to the provisions of K.R.S. Section 91A.080
et seq., between April 1, 2003 and the date the Court
enters an order certifying the plaintiffs' class; and
ii) have located within their geographic boundaries one or
more insured risks which are insured by a defendant or
company affiliated with the defendant.
The plaintiffs want the court to rule on:
a. whether the defendants, being subject to LGPT pursuant
to K.R.S. Section 91A.080 et seq., developed appropriate
procedures for accurately calculating, collecting and
remitting LGPT to the various plaintiffs' class members;
b. whether the defendants, being subject to LGPT pursuant
to K.R.S. Section 91A.080 et seq., committed acts of
conversion through the failure to remit LGPT due and
owing to the various plaintiffs' class members;
c. whether the defendants, being subject to LGPT pursuant
to K.R.S. Section 91A.080 et seq., are liable to the
various plaintiffs' class members for a common-law
accounting for taxes collected and remitted;
d. whether the defendants, jointly and severally, engaged
in concerted action sufficient to give rise to a
juridical link for the purpose of joinder in the instant
action; and
e. whether, and in what amount, the members of the
plaintiffs' class are entitled to recover court costs,
attorneys' fees, penalties and interest, in connection
with delinquent taxes due and owing.
The plaintiffs ask the court for:
-- an order certifying the plaintiffs' class, appointing
Franklin County as representative of the plaintiffs'
class, and appointing its attorneys as class counsel;
-- an order directing that notice of these proceedings, in
conformity with Fed.R.Civ.P. 23 et seq., be distributed
to the plaintiffs' class at the cost of the defendants,
advising them of the pendency of this action and any
process to which the plaintiffs' class may be entitled;
-- judgment in favor of the plaintiff and plaintiffs' class
against defendants, jointly and severally, with respect
to Counts I, II, and III of plaintiff's complaint,
awarding the plaintiff and the class their actual,
compensatory, and consequential damages in an amount to
be determined and proven at trial;
-- judgment in equity in furtherance of the plaintiff's and
plaintiffs' class request for common law accounting,
whereby the Court will examine the appropriate data and
books of the defendants to determine whether defendants
have remitted all taxes due and owing to plaintiff and
plaintiffs' class, and then order any delinquent sums be
paid, together with interest and penalties as may be
authorized by law;
-- an award of pre- and post-judgment interest as may be
authorized by law;
-- an award of costs, to include a reasonable attorneys'
fee, to plaintiff and the plaintiffs' class; and
-- all other relief to which the plaintiff or plaintiffs'
class may appear entitled.
The suit is "Franklin County, Kentucky et al. v. American
International South Insurance Co. et al.," the U.S. District
Court for the Eastern District of Kentucky.
Representing the plaintiffs are:
Kyle S. Thompson, Esq.
Law Offices of Kyle Thompson
100 East Main Street
Frankfort, KY 40601
David H. Abney, II, Esq.
Abney & Magruder
100 East Main Street
Frankfort, KY 40601
- and -
Rick E. Sparks, Esq.
Franklin County Attorney
315 West Main, Room 207
Frankfort, KY 40601
KENTUCKY: Two Counties Settle Jail Strip Search Lawsuits
--------------------------------------------------------
Two Kentucky counties have settled separate lawsuits in
connection with the practice of strip searching more than 1,000
people who were booked into jail over non-violent offenses such
as theft and driving under the influence, Lexington Herald
Leader reports.
According to Lexington Herald, Hopkins County has agreed to pay
$3 million to settle a five-year-old case over the strip-search
practice at its jail in Madisonville in western Kentucky. On
the other hand, Bullitt County, which is about 20 miles south of
Louisville, has agreed to pay $800,000 to settle a three-year-
old lawsuit for strip searches at its jail in Shepherdsville.
Greg Belzley, Esq., who represented the plaintiffs in both
class-action cases, told Lexington Herald that state and federal
laws ban "blanket strip searches" of new inmates charged with
crimes that do not involve violence or drugs.
Many of the affidavits in the two cases have similar details.
They said inmates, regardless of the charges, were forced to
undress and be searched by corrections officers for contraband
after being booked into the jail and just before being released.
The Hopkins County lawsuit was filed over the searches that were
done from at least January 2002 through December 2005. The suit
against Bullitt County related to strip searches done from at
least March 2004 through 2008.
The strip-searches practiced by the two county jails violated
the clearly established law, Mr. Belzley said.
The report notes that neither jail acknowledged wrongdoing.
Instead, attorneys for the jails called the settlements a legal
necessity to avoid more time and expense. Moreover, according
to the report, the settlements also do not include a requirement
that the jails stop strip searching inmates.
Mr. Belzley said that is not unusual. "Typically, once a
lawsuit is filed, if there's a written policy, the policy is
changed," Mr. Belzley explained. "If there's not a written
policy, the practice is ended informally."
Lexington Herald relates that most claimants in the Hopkins
County case could receive up to $2,500, if they were examined
both at booking and release. The initial plaintiffs will
receive a maximum of $35,000 from the settlement.
Under the Bullitt County case settlement, meanwhile, class
representatives will receive a maximum of $30,000 while most
claimants could receive a maximum of $1,500.
The settlements are awaiting final hearing and approval from a
federal judge.
KIA MOTORS: Penna. Superior Court to Hear Sephia Suit Appeal
------------------------------------------------------------
The Pennsylvania Supreme Court will consider four issues of
first impression in a suit over Kia Motors America Inc. sedans
with defective braking systems, Law.com reports.
The issues of first impression, as stated by Kia Motors and
adopted by the Supreme Court in two separate allocatur orders
issued July 11, are:
-- whether the fact-specific claim that the class
representative's brake express warranty was breached can
be certified and tried on a classwide basis;
-- whether Kia's due process rights were violated when
trial court Judge Mark I. Bernstein entered judgment for
the class without requiring individual proof of the
breach of the class members' express limited warranty
contracts;
-- whether the trial court's award of a $1 million risk
multiplier to attorney fees violated U.S. Supreme Court
precedent and if Pennsylvania courts must follow U.S.
Supreme Court precedent about federal fee shifting
statutes;
-- whether an attorney fee can be awarded under the federal
Magnuson-Moss Warranty Act (MMWA) -- which requires that
fee awards be entered as part of the judgment -- when
final judgment was entered at the trial court level
before the fee award is entered.
Case Background
In 2004, the Philadelphia law firm Donovan Searles revealed that
the Philadelphia Court of Common Pleas, in the case of "Samuel-
Bassett v. Kia Motors America, Inc., No. 2199, Jan. Term 2001,"
ordered that Notice of Pendency of Class Action be provided to
all residents of the Commonwealth of Pennsylvania who purchased
or leased a model year 1997, 1998, 1999 or 2000 Kia Sephia
between Jan. 17, 1997, and Jan. 17, 2001 (Class Action
Reporter, Nov. 22, 2004).
In the suit, the plaintiffs claimed the Sephia 1997, 1998, 1999,
and 2000 model automobiles have defects in their braking system.
The plaintiffs claim that this is a breach of warranty and a
violation of the Magnuson-Moss Warranty Improvement Act.
The plaintiffs had sought to recover money damages from
defendant, which may include the costs of repairs and
compensation for the reduction in vehicle value.
In May 2005, a jury awarded $5,641,200 or $600 a piece, to 9,402
class members (Class Action Reporter, June 2, 2005). The
verdict was rendered following a two-week trial in which the
jurors found that there was a common defective design of the
brake system of the 1995-2001 Kia Sephia.
The Philadelphia Court of Common Pleas then confirmed the jury's
verdict on behalf of a class of 9,402 Pennsylvania consumers
(Class Action Reporter, Jan. 2, 2007). The case then proceeded
to the appellate court.
Superior Court's Ruling
In Oct. 2007, the Superior Court of Pennsylvania upheld the
verdict in a nonprecedential decision (Class Action Reporter,
Oct 31, 2007). According to the report, the court made these
opinions in response to Kia Motors' arguments:
(1) Kia argued that some of the class members might not be
individually entitled to an award and that it was in error
to assess $600 for each class member.
The court said class representative Shamell Samuel-Bassett's
total cost for brake repairs during the warranty was
$596.16, and it was reasonable to multiply $600 for the
9,402 class members to reach the verdict of $5,641,200.
"Regardless of whether an individual class member had his or
her brakes repaired under warranty by Kia, all class members
were entitled to have good brakes on their cars that did not
require repeated trips to the dealership for replacement in
order to avoid brake failure," the opinion said.
(2) Kia argued that the class was improperly certified because
it was not certain that each class member relied upon the
warranty or that Kia refused to conduct repairs, the opinion
said.
The Superior Court said the class was properly certified
because trial evidence demonstrated that the 1995-2001 Kia
Sephias had a defective brake system design, that expert
testimony would be needed to prove each claim and that it
would strain the court system to litigate each claim
individually.
(3) Kia also argued that Judge Mark I. Bernstein erred in his
jury instructions, but the Superior Court noted that Kia
either "won on the issue or failed to object to the charge."
(4) The Superior Court also ruled that Judge Bernstein must
issue a supplemental 1925(a) opinion to support why he
awarded $4.125 million in counsel fees and $267,513 in
expenses in January 2006.
The Superior Court said both parties would have 30 days
after Judge Bernstein issues his 1925(a) opinion to file
supplemental briefs in the appellate court.
(5) The appellate court also rejected the plaintiff cross-appeal
of Judge Bernstein's order denying class certification under
the Unfair Trade Practices and Consumer Protection Law.
Judge Bernstein ruled that Samuel-Bassett met the requirement
for class certification under the commonwealth's rules of civil
procedure for her breach of warranty claims but not her consumer
protection claim.
He found that Samuel-Bassett had met all the requirements of
class certification under Pennsylvania's rules of civil
procedure for the breach of warranty claims but not consumer
protection claims because the commonality requirement was not
met and there were not questions of law or fact common to the
individual class members.
The Superior Court panel -- comprised of Judges John T. Bender,
Susan Peikes Gantman and Richard B. Klein -- said in its recent
decision that there was no palpable abuse of discretion by Judge
Bernstein in his award decision and that it should be upheld.
The panel echoed Judge Bernstein's reasoning that the plaintiffs
attorneys' award was reasonable considering the rates the
defense counsel charged.
The panel also echoed Judge Bernstein's dismissal of the chief
defense witness used to challenge the plaintiffs attorney fees
as dishonest: John Marquess of Legal Cost Control Inc., a
Haddonfield, N.J., firm that helps entities reduce and manage
legal and accounting fees.
Mr. Marquess said that the plaintiffs' fee request should be
reduced by 86 percent to $662,667.15 for a case that was
litigated for five years, during which it was removed to federal
court, remanded to state court and tried, The Legal
Intelligencer previously reported.
Kia's appellate counsel in Pennsylvania, a team of attorneys
from the Lamb McErlane firm in West Chester, argued in their
petition for allowance of appeal on the merits of the case that
classwide proof of violation of an express warranty is
impossible because express warranties can only be "breached
under the specific factual circumstances and events unique to a
particular vehicle and a specific customer."
According to court papers, Kia argued that the proof of the
breach of the class representative Shamell Samuel-Bassett's
individual express limited warranty can't be extrapolated as the
evidence of proof of the breach of the other class members'
warranty contracts.
Kia argued that the only classwide evidence was its warranty
claims records, and the records showed that it honored its
warranties by paying for repairs. Kia also argued that the
Superior Court panel made its decision in the case as if the
case was within the context of an implied warranty case, not an
express warranty case.
"There are some pretty important issues here," William H. Lamb,
Esq., of Lamb McErlane said in a joint interview with co-counsel
James C. Sargent Jr., also of Lamb McErlane. "And Kia's
position is very simple. It has always tried to take care of its
customers."
"If the existing decisions are permitted to stand, they are an
open invitation to plaintiffs attorneys to sue on breach of
express warranty claims in Pennsylvania, knowing that they only
need prove breach as to a single named plaintiff to obtain a
multi-million dollar verdict as to everyone who has purchased a
product, where every payment by the manufacturer under warranty
may be used as proof that a wrong has occurred and not, as in
the truth, that the warranty has been honored," Kia's appellate
brief said.
The plaintiffs' reply brief on the merits of the case reported
that Pennsylvania courts have "distinguished themselves by
rejecting sweetheart settlements coveted by corporate defendants
and accepted by accommodating plaintiffs attorneys" like the
$62,925 settlement paid to consumers who purchased Sephias in
the 47 states besides Florida, New Jersey and Pennsylvania where
the plaintiffs attorneys are litigating parallel class actions
against Kia.
The plaintiffs' attorney Michael D. Donovan, Esq., of Donovan
Searles said his co-counsel and he believe that all of the
issues of "first impression" raised by Kia have either been
waived or are of no consequence.
The suit is "Samuel-Bassett v. Kia Motors America Inc."
Trial counsel for plaintiffs and the class of Pennsylvania
consumers are:
Michael D. Donovan, Esq. (mdonovan@donovansearles.com)
Donovan Searles, LLC
Phone: +1-215-732-6067 or
Toll- +1-800-619-1677
Fax: +1-215-732-8060
Alan M. Feldman, Esq. (afeldman@feldmanshepherd.com)
Feldman, Shepherd, Wohlgelernter, Tanner & Weinstock,
1845 Walnut Street, 25th Floor
Philadelphia, PA 19103
Phone: 215-567-8300
1-888-275-0296
Fax: 215-567-8333
- and -
James A. Francis, Esq. (jfrancis@consumerlawfirm.com)
Francis & Mailman, P.C.
19th Floor Land Title
Building, 100 South Broad St.
Philadelphia, PA 19110,
Phone: 215-735-8600
Fax: 215-940-8000
LAWSON SOFTWARE: Faces Labor-Related Lawsuit in New York
--------------------------------------------------------
Lawson Software, Inc., is facing a labor-related class action
lawsuit before the U.S. District Court for the Southern District
of New York, according to the company's July 11, 2008 Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended May 31, 2008.
The punitive class action lawsuit was filed against the company
on May 20, 2008, on behalf of current and former business,
systems, and technical consultants.
The suit, "Cruz, et. al., v. Lawson Software, Inc. et. al., Case
No. 1:08-cv-04704-SHS," alleges that that the company failed to
pay overtime wages pursuant to the Fair Labor Standards Act and
state law, and alleges violations of state record-keeping
requirements. It also alleges certain violations of Employee
Retirement Income Security Act and unjust enrichment.
The relief sought includes back wages, corresponding 401(k) plan
credits, liquidated damages, penalties, interest and attorneys'
fees.
The suit "Cruz, et. al., v. Lawson Software, Inc. et. al., Case
No. 1:08-cv-04704-SHS," filed in the U.S. District Court for the
Southern District of New York, Judge Sidney H. Stein, presiding.
Representing the plaintiffs is:
Llezlie Lloren Green, Esq. (lgreen@cmht.com)
Cohen, Milstein, Hausfeld & Toll, PLLC
1100 New York Ave., N.W.
Suite 500, West Tower
Washington, D.C., DC 20005
Phone: 202-408-4600
Fax: 202-408-4699
Representing the defendants are:
Loretta Mae Gastwirth, Esq.
(lgastwirth@meltzerlippe.com)
Meltzer, Lippe, Goldstein & Breitstone, LLP
190 Willis Avenue
Mineola, NY 11501
Phone: 516-747-0300
Fax: 516-747-0653
- and -
Sara Gullickson McGrane, Esq. (smcgrane@felhaber.com)
Felhaber, Larson, Fenlon & Vogt, P.A.
220 S. Sixth Street, Suite 2200
Minneapolis, MN 55402
Phone: 612-373-8511
Fax: 612-338-0535
PHILIPPINES: Journalists File Notice of Appeal in Peninsula Suit
----------------------------------------------------------------
Philippine journalists who were arrested while covering the
Manila Peninsula siege in 2007 asked the Makati Regional Trial
Court (RTC) Branch 56, which earlier dismissed their class
action suit against certain rank officials, to transmit the
records of the case to the Court of Appeals, Sun.Star Newsletter
reports.
According to the news article, this is in preparation to the
journalists' filing of a motion to reverse the lower court
ruling.
Specifically, the plaintiffs, represented by attorney Harry
Roque, filed their "notice of appeal" before RTC Branch 56 Judge
Reynaldo Laigo.
As reported in the Class Action Reporter on Jan. 31, 2008,
Philippine media practitioners filed a class action suit before
the Makati RTC Branch 56 against:
-- Interior Secretary Ronaldo Puno,
-- Justice Secretary Raul Gonzalez,
-- Defense Secretary Gilberto Teodoro Jr.,
-- Philippine National Police Director Avelino Razon,
-- National Capital Region Police Office Chief
Geary Barias,
-- Southern Police District Director Luizo Ticman,
-- former Armed Forces chief Hermogenes Esperon Jr.,
-- PNP-Special Action Force commander C/Supt. Leocadio
Santiago, and
-- PNP-Criminal Investigation and Detection Group-National
Capital Region Director S/Supt Asher Dolina
for arresting journalists who were covering a mutiny attempt at
The Peninsula Manila hotel in Makati City last year.
The CAR report recounted that on Nov. 29, 2007, members of the
media were arrested by police authorities after the stand-off at
the Manila Pen. About 50 journalists were nabbed but were
released later.
The journalists asserted in their suit that their right to
freedom of speech was threatened and asked the court to
compensate them for their supposed illegal arrests during the
hotel siege.
Authorities, on the other hand, had explained that the arrest
was done to separate and identify legitimate media practitioners
from members of the mutineers who they alleged were posing as
media identity to escape authorities.
In a follow-up story on Feb. 19, 2008, the CAR wrote that
Defense Secretary Gilberto Teodoro Jr. asked the Court to
dismiss the PHP10-million suit, saying that the complaint, plus
a petition for a writ of preliminary injunction against
the government, lacked merit.
Subsequently, the Makati Court, on June 27, 2008, dismissed the
class action suit. In his decision, Makati RTC Branch 56 Judge
Reynaldo Laigo junked the complaint citing lack of evidence
(Class Action Reporter, July 1, 2008). Judge Laigo said the
order of the authorities for all those inside the hotel,
including the plaintiffs-journalists, to vacate the hotel's
premises were "lawful" considering the "dangerous situation" at
the time.
Rommel Bagares, another lawyer for the journalists, said that
the plaintiffs decided to seek redress before the appellate
court since the lower court has already junked not only the
motion for the issuance of a preliminary injunction but the
PHP10-million class action suit as well. Mr. Bagares said that
if the Court of Appeals rules in favor of the plaintiffs, then
the case will be remanded to the Makati court for trial.
"If the higher court rules in our favor, then in most
probability it will be sent back to the lower court for trial,
but the plaintiffs have said they will ask for the inhibition of
Judge Laigo," Mr. Bagares told Sun.Star.
NCRPO Director Geary Barias, one of the named defendants,
welcomed the decision of the journalists even as he defended the
conduct of the authorities in the aftermath of the standoff, the
report notes.
"A lawful order was made but it was disobeyed. The police were
just acting within the bounds of the law," Director Barias said,
adding that the order issued by the authorities for all those
inside the hotel to get out prior to the assault was "lawful and
justified considering the then dangerous situation." Director
Barias also stressed that during the six-hour standoff, the
police even appealed to all media practitioners inside the hotel
to leave and let police handle the situation.
The plaintiffs in the suit comprise of 36 journalists and four
media organizations, namely, the Philippine Center for
Investigative Journalism, Center for Media Freedom and
Responsibility, National Union of Journalists of the
Philippines, and the Philippine Press Institute.
Sun.Star notes that of these 36 journalists, five were arrested
and "processed" at Camp Bagong Diwa in Taguig City. The five
journalists claimed that they were arbitrarily arrested without
probable cause while covering the standoff between the Magdalo
Group led by detained Senator Antonio Trillanes IV and
government troops. They added that they were not formally
charged or informed of their rights by the authorities.
QIAO XING: $2.4MM Securities Fraud Suit Deal Gets Final Approval
----------------------------------------------------------------
Judge Denise L. Cote of the United States District Court for the
Southern District of New York gave final approval to the
$2,400,000 settlement in the class action lawsuit entitled "In
re Qiao Xing Securities Litigation, Civil Action No. 07 cv 7097
(DLC)."
The suit is filed on behalf of all persons and entities who:
(1) purchased shares of Qiao Xing Universal Telephone, Inc.
(Qiao Xing, a company traded on the NASDAQ Global
Select Market as XING) common stock between June 30,
2004 and July 16, 2007, both dates inclusive;
(2) purchased Qiao Xing call options between June 30, 2004
and July 16, 2007, both dates inclusive; or
(3) sold Qiao Xing put options between June 30, 2004 and
July 16, 2007, both dates inclusive.
The complaint charged Qiao Xing and certain of its officers and
directors with violations of the Securities Exchange Act of 1934
(Class Action Reporter, Sept. 3, 2007).
More specifically, the Complaint alleged that the Company failed
to disclose and misrepresented the following material adverse
facts which were known to defendants or recklessly disregarded
by them:
(1) that the Company had materially overstated its net
income for the years ended December 31, 2003, Dec. 31,
2004, and December 31, 2005;
(2) that the Company's financial statements were not
prepared in accordance with Generally Accepted
Accounting Principles;
(3) that the Company lacked adequate internal and financial
reporting controls; and
(4) that, as a result of the foregoing, the Company's
financial statements were materially false and
misleading at all relevant times.
The Company shocked investors on July 17, 2007, when it
disclosed that it was forced to restate its previously issued
financial statements for the years ending December 31, 2003,
2004, and 2005. The Company stated that "certain misstatements"
were not detected due to multiple deficiencies in the Company's
system of internal controls over financial reporting, including
an insufficient complement of personnel with accounting
knowledge, lack of an effective enterprise risk management
system, lack of an effective anti-fraud program and
whistleblower system, and lack of an independent and effective
internal audit function. On this news, shares of Qiao Xing fell
$2.93 per share, or 21%, to close on July 17, 2007, at $11.04
per share, on unusually heavy trading volume.
The plaintiff seeks to recover damages on behalf of class
members.
In April, Qiao Xing settled the securities fraud suit (Class
Action Reporter, April 29, 2008).
The proposed settlement provides for creation of a Settlement
Fund in the amount of $2,400,000.
At the July 11 fairness hearing, Judge Cote gave her final
approval of the settlement of the class action against Qiao Xing
and its directors and officers. The Final Approval Order and
Judgment was signed and entered on the same day.
The settlement amount for the class action was $2,400,000. The
Company's directors and officers insurance carrier contributed
$300,000 towards the settlement. The Company has accrued a
$2,100,000 non-operating loss in its 2007 consolidated financial
statements in connection with the settlement. This loss had no
material impact on the consolidated results of the Company for
the year ended December 31, 2007.
Mr. Wu Rui Lin, Chairman of XING, said, "We are glad that the
class action was promptly settled. I would like to stress that
there is no admission of wrongdoing by the defendants in the
settlement and we agreed to it to halt the substantial expense
and management distraction that continues to be attendant to the
litigation, as well as to eliminate uncertainty and risks from
continued litigation."
The suit is "In re Qiao Xing Securities Litigation, Civil Action
No. 07 cv 7097 (DLC)," filed with the U.S. District Court for
the Southern District of New York, Judge Denise Cote, presiding.
RIVERSIDE CEMENT: Faces Suit Over Hexavalent Chromium Emissions
---------------------------------------------------------------
Riverside Cement Co., a subsidiary of Texas Industries, Inc., is
facing a purported class action lawsuit over hexavalent chromium
emissions from its Crestmore cement plant in Riverside,
California, according to Texas Industries' July 11, 2008 Form
10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended May 31, 2008.
In late April 2008, a lawsuit was filed in Riverside County
Superior Court styled, "Virginia Shellman, et al. v. Riverside
Cement Holdings Company, et al."
The lawsuit purports to be a class action complaint seeking
medical monitoring for a putative class composed of individuals
who were allegedly exposed to hexavalent chromium emissions from
the plant.
The complaint alleges an increased risk of future illness due to
the exposure to chrome 6 and other toxic chemicals.
It requests, among other things, punitive and exemplary damages
and establishment and funding of a medical testing and
monitoring program for the class until their exposure to chrome
6 is no longer a threat to their health.
Texas Industries, Inc. -- http://www.txi.com/-- is a supplier
of heavy building materials in the U.S. The Company operates
through three business segments: cement, aggregates and consumer
products. The cement segment produces gray portland cement and
specialty cements. The aggregates segment produces natural
aggregates, including sand, gravel and crushed limestone, and
specialty lightweight aggregates. The consumer products segment
primarily produces ready-mix concrete, and to a lesser extent,
packaged products. As of May 31, 2007, the Company operated 91
manufacturing facilities in six states in the U.S.
SCOTTISH RE: Amended Suit to be Filed in N.Y. Securities Lawsuit
----------------------------------------------------------------
The plaintiffs in the securities fraud class action lawsuit,
"Zuckerman v. Scottish Re Group Ltd., et al., Case No. 1:06-cv-
05853-SAS," seek to file an amended complaint in the matter,
which remains pending with the U.S. District Court for the
Southern District of New York.
On Aug. 2, 2006, putative class actions were filed against:
-- the company;
-- Glenn Schafer, the chairman of the company's board of
directors;
-- Dean E. Miller, chief financial officer;
-- Scott E. Willkomm, former chief executive officer; and
-- Seth Vance, former chief executive officer - North
America.
Between Aug. 7, 2006, and Oct. 2, 2006, seven additional related
class action complaints were filed against the company, certain
of its current and former officers and directors, and certain
third parties.
Each of the complaints allege that the defendants made
materially false and misleading statements and omissions
concerning the company's business and operations, thereby
causing investors to purchase the company's securities at
artificially inflated prices, in violation of Sections 10(b) and
20(a) of the U.S. Securities Exchange Act of 1934, as amended,
and Rule 10b-5 promulgated under the 1934 Act.
Two of the complaints also allege violations of Sections 11 and
15 of the Securities Act of 1933, related to a 2005 preferred
stock offering. Each of the class action suits filed seek an
unspecified amount of damages, as well as other forms of relief.
On Oct. 12, 2006, all of the cases were consolidated. A
consolidated complaint was filed on December 4, 2006.
On March 7, 2007, the company filed a motion to dismiss the
consolidated class action.
On Nov. 2, 2007, the court dismissed the Section 10(b) and Rule
10b-5 claims against Ernst & Young LLP, but gave the plaintiffs
leave to amend. The court denied the dismissal motions brought
by the other named defendants.
In May, 2008, the parties held an initial mediation at which no
settlement was reached.
On June 16, 2008, all claims brought in the action against Glenn
Schafer were dismissed without prejudice.
The plaintiffs then filed a motion for leave to file an amended
complaint in which they seek to expand the class period, renew
Section 10(b) and Rule 10b-5 allegations against Ernst & Young
LLP, and assert additional factual allegations, according to the
company's July 11, 2008 Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
Dec. 31, 2007.
The is suit is "Zuckerman v. Scottish Re Group Ltd. et al., Case
No. 1:06-cv-05853-SAS," filed in the U.S. District Court for the
Southern District of New York, Judge Shira A. Scheindlin,
presiding.
Representing the plaintiffs are:
Arthur N. Abbey, Esq. (aabbey@abbeygardy.com)
Abbey Spanier Rodd Abrams & Paradis
LLP, 212 East 39th Street
New York, NY 10016
Phone: 212-889-3700
Fax: 212-684-5191
- and -
Gerald Harlan Silk, Esq. (jerry@blbglaw.com)
Bernstein Litowitz Berger & Grossmann LLP
1285 Avenue of the Americas
New York, NY 10019
Phone: 212-554-1282
Fax: 212-554-1444
Representing the company is:
Daniel Keywon Chang, Esq. (dchang@dl.com)
Dewey & LeBoeuf, L.L.P.
1101 New York Avenue, N.W.
Washington, DC 20005
Phone: 202-986-8000 x8221
Fax: 202-986-8102
- and -
James E. Brandt, Esq. (james.brandt@lw.com)
Latham & Watkins LLP
885 Third Avenue, Suite 1000
New York, NY 10022
Phone: 212-906-1278
Fax: 212-751-4864
UBS FINANCIAL: Md. Court Dismisses Racial Discrimination Lawsuit
----------------------------------------------------------------
The U.S. District Court for the District of Maryland granted
summary judgment in favor of UBS Financial Services, Inc., in
the matter, "Cook et al. v. UBS Financial Services, Inc., Case
No. 8:06-cv-00803-PJM," Brendan Kearney writes for The Daily
Record.
The racial discrimination lawsuit was brought by three former
employees of the New York-based investment firm. The three
black men had filed the suit in federal court in New York in
October 2005 as a putative class action alleging various forms
of discrimination -- placement in a segregated satellite office,
lack of support, and a "glass ceiling" effect with respect to
promotions.
The report recounts that the case was transferred to Greenbelt,
Maryland, near the short-lived UBS office in Largo where two of
the plaintiffs worked.
The lawsuit, which the plaintiffs sought to bring on behalf of
"professional" blacks at UBS, alleged "a glaring lack of
diversity" at the company, noting that only 1.2% of the 8,615
UBS brokers as of March 2002 were African-American.
The suit pointed to the Largo office, which opened in November
2000 and closed in June 2003, as an example of what Steven M.
Pavsner, Esq., of Joseph, Greenwald & Laake P.A. -- the
plaintiffs' local counsel -- called "racial matching," or
placing black financial advisors in the Prince George's County
office to do business exclusively with black residents of that
area.
At the Largo office, plaintiffs and financial advisors Freddie
H. Cook and Sylvester L. Fleming Jr., alleged they were provided
with an insufficient marketing budget and insufficient support
staff, and that the supervisory corps at the startup branch was
few in number and short on experience.
In April 2007, the plaintiffs dropped their class claims, and a
one-page order disposed of the remaining individual claims.
In the recently issued decision, Judge Peter J. Messitte granted
summary judgment on behalf of UBS against Messrs. Cook and
Fleming.
Judge Messitte read his opinion from the bench, according to Mr.
Pavsner. The court said that it did not find that African-
Americans were steered to Largo, and that was based on the
testimony of Messrs. Cook and Fleming that basically said "they
were willing to go to Largo," said Mr. Pavsner, noting that the
men's request to work in the company's Washington, D.C., office
was denied.
With respect to the support issues, "The court said all those
issues were business decisions and whether they were wise
business decisions or not wise business decisions, the court was
not going to second-guess," according to Mr. Pavsner.
Aside from Mr. Pavsner, the plaintiffs were represented by the
Philadelphia class-action law firm of Berger & Montague P.C., as
well as a New York and Oregon firm. UBS was represented by
Covington & Burling LLP in Washington, D.C.
The suit is "Cook, et al. v. UBS Financial Services, Inc., Case
No. 8:06-cv-00803-PJM," filed in the U.S. District Court for the
District of Maryland, Judge Peter J. Messitte, presiding.
Representing the plaintiffs are:
Steven M. Pavsner, Esq. (spavsner@jgllaw.com)
Joseph Greenwald and Laake PA
6404 Ivy Ln. Ste. 400
Greenbelt, MD 20770
Phone: 1-301-220-2200
Fax: 1-301-220-1214
Brett H. Cebulash, Esq. (bcebulash@garwingerstein.com)
Garwin Gerstein and Fisher LLP
1501 Broadway, Ste. 1416
New York, NY 10036
Phone: 1-212-398-0055
Fax: 1-212-764-6620
- and -
Russell D. Henkin, Esq. (rhenkin@bm.net)
Berger and Montague PC
1622 Locust St.
Philadelphia, PA 19103
Phone: 1-215-875-3000
Fax: 1-215-875-4604
Representing the defendants is:
Eric Himpton Holder, Jr, Esq. (eholder@cov.com)
Covington and Burling
1201 Pennsylvania Ave. NW
Washington, DC 20004
Phone: 1-202-662-5372
Fax: 1-202-778-5372
WISCONSIN: State Bar Exam Lawsuit Granted Class Action Status
-------------------------------------------------------------
U.S. District Judge Barbara Crabb has granted class action
status to a lawsuit challenging Wisconsin's policy of allowing
in-state law graduates to become lawyers without passing the bar
exam, Chicago Tribune relates, citing a report from the
Associated Press.
In her ruling, Judge Crabb says that anyone who applies to
practice law in Wisconsin within 30 days of graduating from a
law school outside the state can join the lawsuit.
The AP explains that Wisconsin allows graduates from its two law
schools to become lawyers immediately if they meet certain
requirements. It is the last state in the nation with the so-
called diploma privilege.
The suit, initiated in 2007 by an Oklahoma City University
School of Law graduate, claims that the state's policy is
unconstitutional because it treats out-of-state law school
graduates differently.
New Securities Fraud Cases
FIRST AMERICAN: Brower Piven Files N.Y. Securities Fraud Suit
-------------------------------------------------------------
Brower Piven, A Professional Corporation commenced a class
action lawsuit in the United States District Court for the
District of Southern District of New York on behalf of
purchasers of the common stock of First American Corporation
between April 26, 2006, and November 6, 2007, inclusive.
The complaint charges First American and certain of its officers
and directors with violations under the Securities Exchange Act
of 1934 due to their withholding material facts from the
investing public.
The complaint alleges that throughout the Class Period,
defendants mislead investors through the Company's real estate
appraisal subsidiary, eAppraiseIT, which knowingly (to
defendants) provided inflated appraisals to Washington Mutual,
Inc. that enabled WaMu to engage in numerous real estate
mortgage transactions that would have been untenable had the
property at issue been correctly appraised.
The complaint further alleges that these improper appraisal
practices during the Class Period rendered the Company's
statements about its compliance with ethical and legal
guidelines and the adequacy of the Company's internal controls
materially false and misleading.
The complaint further states that defendants' ongoing omissions
of material fact related to the Company's home appraisal
business caused reported financial information, including
revenues associated with home appraisal, to be materially
overstated throughout the Class Period, caused the Company's
loan loss reserves, provisions for doubtful account and
contingent liabilities to be materially understated during the
Class Period, and caused Defendants to report financial results
that were in violation of GAAP. Upon disclosure of First
American's wrongdoing, First American's stock price has declined
significantly.
Interested parties may move the court no later than August 25,
2008 for lead plaintiff appointment.
For more information, contact:
Charles J. Piven, Esq.
Brower Piven, A Professional Corporation
The World Trade Center-Baltimore
401 East Pratt Street, Suite 2525
Baltimore, MD 21202
Phone: 410-332-0030
e-mail: hoffman@browerpiven.com
Web site: http://www.browerpiven.com/
FRANKLIN BANCORP: Cohen Milstein Files Securities Suit in Texas
---------------------------------------------------------------
The law firm Cohen, Milstein, Hausfeld & Toll, P.L.L.C. has
filed a lawsuit in the United States District Court for the
Southern District of Texas on behalf of all purchasers of the
common stock and preferred shares of Franklin Bank Corp. between
April 26, 2007, and May 1, 2008, inclusive.
The complaint charges Franklin and certain of its officers and
directors with violations of the Securities Exchange Act of
1934.
Franklin operates as the bank holding company for Franklin Bank,
S.S.B., a savings bank that provides community banking products
and services, and commercial banking services to corporations
and other business clients, and originates single family
residential mortgage loans primarily in Texas.
The complaint alleges that during the Class Period, defendants
issued materially false and misleading statements regarding the
Company's business and financial results. According to the
complaint, as a result of defendants' false statements,
Franklin's stock traded at artificially inflated prices during
the Class Period, reaching a high of $16.89 per share in May
2007. While Franklin's stock was allegedly inflated due to
defendants' improper accounting and false assurances about its
business, defendants completed a $25 million secondary offering
of the Company's stock.
Then, on May 1, 2008, after the market closed, Franklin issued a
press release stating that the Bank had submitted to the Federal
Deposit Insurance Corporation its call report for the quarter
ended March 31, 2008. In addition, the Bank also submitted to
the FDIC amended call reports for the periods ended Sept. 30,
2007, and December 31, 2007. Based on Franklin's ongoing review
and evaluation of its 2007 financial statements, certain changes
to the Bank's previously submitted call reports were necessary.
On this news, Franklin's stock dropped from $1.72 per share on
May 1, 2008, to $1.29 per share on May 2, 2008, and to $1.03 per
share by May 5, 2008.
According to the complaint, the true facts, which were known by
the defendants but concealed from the investing public during
the Class Period, were as follows:
(a) defendants' assets contained tens of millions of
dollars worth of impaired and risky securities, many of
which were backed by mortgage loans;
(b) defendants failed to properly account for Franklin's
mortgage-related assets, failing to adequately reflect
impairment in the loans;
(c) defendants had not properly accounted for single family
loans serviced by third parties that became delinquent;
and
(d) Franklin's call reports filed with the FDIC beginning
with the September 2007 quarter, at the latest, and its
Form 10-Q for the September 2007 quarter were in error
due to the Company's failure to properly account for
losses on mortgage loans and REO properties.
Interested parties may move the court no later than August 5,
2008, for lead plaintiff appointment.
For more information, contact:
Steven J. Toll, Esq. (stoll@cmht.com)
Prithvi Jagannath, Esq. (pjagannath@cmht.com)
Cohen, Milstein, Hausfeld & Toll, P.L.L.C.
1100 New York Avenue, N.W.
West Tower , Suite 500
Washington, D.C. 20005
Phone: 888-240-0775 or
202- 408-4600
INDYMAC BANCORP: Bernard Gross Files California Securities Suit
---------------------------------------------------------------
Law Offices Bernard M. Gross, P.C. has commenced a class action
lawsuit in the United States District Court, Central District of
California, on behalf of purchasers of the common and preferred
stock and preferred units of INDYMAC BANCORP, INC. between
August 16, 2007, and May 12, 2008, inclusive, pursuant to the
Securities Exchange Act of 1934.
The complaint charges that during the Class Period, defendants
issued materially false and misleading statements regarding the
Company's business and financial results. As alleged,
Defendants knew but misrepresented the true extent of IndyMac's
losses in its loan portfolio, including adjustable-rate
mortgages and homebuilder construction loans, and IndyMac's
inadequate capital position.
On May 12, 2008, IndyMac announced a net loss of $184.2 million,
or ($2.27) per share for its first quarter. On this news,
IndyMac's common stock price fell to $2.32 per share.
Recently, the Company's assets were seized by federal banking
regulators. While the funds deposited are insured by the FDIC
up to $100,000 per depositor, there is no such protection for
shareholders. This lawsuit is one of the few remedies available
to shareholders.
Plaintiff seeks to recover damages on behalf of all those who
purchased the common and preferred stock and preferred units of
INDYMAC BANCORP between August 16, 2007, and May 12, 2008.
For more information, contact:
Law Offices Bernard M. Gross, P.C.
John Wanamaker Building, Suite 450
Philadelphia, PA 19107
Phone: 215-561-3600
866-561-3600 (Toll Free)
Fax: 215-561-3000
MRV COMMUNICATIONS: Brower Piven Files Securities in California
---------------------------------------------------------------
Brower Piven, A Professional Corporation disclosed that a class
action lawsuit has been commenced in the United States District
Court for the District of Central District of California on
behalf of purchasers of the common stock of MRV Communications,
Inc. between March 31, 2003, through June 5, 2008, inclusive.
The complaint charges defendants with violations under the
Securities Exchange Act of 1934 by withholding material facts
from the investing public.
The complaint alleges that during the Class Period, defendants
made false and misleading statements concerning the Company's
employee stock option grant practices and financial results
including:
-- that the Company had problems with its internal controls
that prevented it from issuing accurate financial reports
and projections;
-- that due to improperly recorded stock-based compensation
expenses the Company's financial results violated GAAP;
and
-- that the Company's public disclosures covering a seven-
year period presented an inflated view of MRV's earnings
and earnings per share.
The complaint also alleges that on June 5, 2008, MRV announced
an expected restatement of its 2002 to 2008 financial statements
and that its previously-issued financial statements, earnings
press releases, and similar communications should no longer be
relied upon, thus causing the value of Company shares to
decline.
Interested parties may move the court no later than September 8,
2008 for lead plaintiff appointment.
For more information, contact:
Charles J. Piven, Esq.
Brower Piven, A Professional Corporation
The World Trade Center-Baltimore
401 East Pratt Street, Suite 2525
Baltimore, MD 21202
Phone: 410-332-0030
e-mail: hoffman@browerpiven.com
Web site: http://www.browerpiven.com/
SONOCO PRODUCTS: Brower Piven Files Securities Suit in S.C.
-----------------------------------------------------------
Brower Piven, A Professional Corporation disclosed that a class
action lawsuit has been commenced in the United States District
Court for the District of South Carolina on behalf of purchasers
of the common stock of Sonoco Products Co. between February 7,
2007, and September 18, 2007, inclusive.
The complaint charges Sonoco Products and certain of its
officers and directors with violations under the Securities
Exchange Act of 1934 by issuing a series of materially false and
misleading statements concerning the Company's financial
performance and prospects.
Specifically, the complaint alleges that these statements were
materially false and misleading because defendants failed to
disclose and misrepresented that the Company had no reasonable
basis for its 2007 earnings guidance because the Company:
-- was losing market share to its competitors;
-- was having operational difficulties in implementing its
next generation of products;
-- was experiencing weaker sales in its Engineered Carriers
and Paper and Consumer Packaging segments, especially in
North America;
-- was distracted by the loss of a bid on a large contract,
which resulted in decreased sales and price concessions
on current contracts; and
-- was having a difficult time in moving its old inventory.
Both when the Company announced financial results on July 20,
2007 (for the period ended July 1, 2007) and, on September 18,
2007, a reduction in its third quarter 2007 base earnings
estimate, the value of the Company's shares declined.
For more information, contact:
Charles J. Piven, Esq.
Brower Piven, A Professional Corporation
The World Trade Center-Baltimore
401 East Pratt Street, Suite 2525
Baltimore, MD 21202
Phone: 410-332-0030
e-mail: hoffman@browerpiven.com
Web site: http://www.browerpiven.com/
STATE STREET: Brower Piven Files Massachusetts Securities Suit
--------------------------------------------------------------
Brower Piven, A Professional Corporation filed a class action
lawsuit in the United States District Court for the District of
Massachusetts on behalf of purchasers of the SSgA Yield Plus
Fund who purchased shares of the Fund within the three years
that preceded the filing of the lawsuit.
The complaint charges State Street Corporation and certain
related entities, among others, with violations of the
Securities Act of 1933.
State Street Global Advisors is the investment advisor to the
entire group of mutual funds under the State Street name.
The Complaint alleges, among other things, that the Registration
Statement, its amendments, and general solicitation materials
for the sale of shares of the Yield Plus Fund were inaccurate
and misleading, contained untrue statements of material facts,
omitted to state other facts necessary to make statements made
not misleading, and otherwise omitted to state material facts
required to be stated therein.
Interested parties may move the court no later than September 2,
2008, for lead plaintiff appointment.
For more information, contact:
Charles J. Piven, Esq.
Brower Piven, A Professional Corporation
The World Trade Center-Baltimore
401 East Pratt Street, Suite 2525
Baltimore, MD 21202
Phone: 410-332-0030
e-mail: hoffman@browerpiven.com
Web site: http://www.browerpiven.com/
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent research,
collectively face billions of dollars in asbestos-related
liabilities.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel S. Senorin, Janice M. Mendoza, Freya Natasha F.
Dy, and Peter A. Chapman, Editors.
Copyright 2008. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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