/raid1/www/Hosts/bankrupt/CAR_Public/080729.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, July 29, 2008, Vol. 10, No. 149
Headlines
ALBERTSON'S: Sued for Printing Credit Card Numbers on Receipts
AT&T CORP: Refuses to Give Caller ID Outside Network, Suit Says
BIOGEN IDEC: Plaintiffs File Brief in Appeal of Mass. Lawsuit
BROADCOM CORP: Wants California Securities Fraud Lawsuit Nixed
CHILDREN'S PLACE: N.Y. Stockholder Lawsuit Dismissal Bid Denied
COMSTOCK RESOURCES: Faces Stone Energy-Bois d'Arc Merger Lawsuit
CUMBERLAND COUNTY: To Pay $4.5 Mln. to Settle Strip-Search Suit
EVANS FRUIT: Illegal Hiring Class Suit Can Proceed, Judge Says
EXELON CORP: Plaintiffs Appeal Dismissal of Illinois ERISA Suit
EXELON CORP: Ill. Court Stays Proceedings in Savings Plan Suit
FRESNO CALIFORNIA: $2.3-Million Deal in Homeless Suit is Final
INSURANCE COS: Sued Over Refused Post-Award Interest Payment
KFC US: Feb. 13, 2009 Hearing Set for Labor Suit Certification
LAURIN MARITIME: Oil Spill Lawsuit Demands Millions in Damages
MENU FOODS: Final Hearing for Pet Food MDL Deal is on Oct. 14
NUVELO INC: Court Yet to Rule on Securities Suit Dismissal Bid
PHONE COS: Face Pennsylvania Suit Over Illegal Tax Collection
SUNOPTA INC: Faces Shareholders' Lawsuit in N.Y. Federal Court
SUNOPTA INC: Faces Shareholders' Lawsuit in Ontario Court
TACO BELL: Class Certification Request Deadline is August 1
TACO BELL: July 27, 2009 Hearing Set in California Labor Lawsuit
TACO BELL: Faces "Levya" Labor Violations Lawsuit in California
TACO BELL: Faces "Hardiman" Labor-Related Lawsuit in California
TACO BELL: New Judge Assigned to Calif. ADA Violations Lawsuit
TOUSA INC: Bernstein Liebhard Named Lead Counsel in Durgin Case
TRM CORP: Dismisses Consolidated Securities Fraud Suit in Oregon
UBS AG: Sued for Fraudulent Promotion of Auction-Rate Securities
VOLKSWAGEN OF AMERICA: Potential Class Gets Mail Notification
WELLPOINT INC: Settles Calif. Suits Over Rescission of Policies
XTO ENERGY: Still Faces Suit Over Natural Gas Royalty Payments
New Securities Fraud Cases
ARTHROCARE: Klafter & Olsen Files Texas Securities Fraud Lawsuit
CIT GROUP: Coughlin Stoia Files Securities Fraud Suit in N.Y.
CIT GROUP: Brualdi Files Securities Fraud Suit in New York
SEMGROUP ENERGY: Brualdi Files Securities Fraud Suit in New York
SEMGROUP ENERGY: Wolf Popper Files Securities Fraud Suit in N.Y.
*********
ALBERTSON'S: Sued for Printing Credit Card Numbers on Receipts
--------------------------------------------------------------
Albertson's LLC is being sued in federal court by East Baton
Rouge Parish resident Lisa Bezet, who alleges that the
supermarket chain's gasoline pumps near the southwest corner of
Airline Highway and Highland Road printed her credit card's
numbers on her receipt on June 13, 2008, 2TheAdvocate reports.
2TheAdvocate relates that tiny numbers on credit-card receipts
at gasoline pumps can mean big dollars for thieves who know how
to steal identities. Those numbers also have the capacity to
cause catastrophic courtroom losses for retailers.
The report points out that due to dangers like this, the Fair
and Accurate Credit Transactions Act of 2003, or FACTA, limits
to five the number of a card's digits that can be printed on a
receipt.
However, Ms. Bezet claims that six of her credit card numbers
were included on her June 13 gas pump receipt. She does not say
that she has suffered financial loss, but notes in her suit that
FACTA was designed to prevent losses due to identity theft.
"That's why the statute was passed," Scott Brady, Esq., one of
Bezet's attorneys, told 2TheAdvocate. "More than five digits,
it creates the potential for fraud and identity theft."
Ms. Bezet seeks class-action status for her suit. If she wins,
the report says, U.S. District Judge James Brady could order
Albertson's to pay $100 to $1,000 for each receipt found to have
included too many credit card numbers for thousands of
customers.
Albertson's LLC is the parent of Albertsons stores.
"Albertsons makes every effort to safeguard the personal
information of our customers and has technology in place to
comply with all state and federal laws, including . . . the
federal law that specifies what credit and debit card
information can be printed on customers’ receipts," company
officials said last week in a statement released through one of
Albertson's LLC's Baton Rouge attorneys, Glenn Farnet, Esq.
"Albertsons believes this was an isolated incident," the
statement says. "We have verified that all of our fuel pump
receipt printers throughout Louisiana are in full compliance
with the state and federal requirements."
AT&T CORP: Refuses to Give Caller ID Outside Network, Suit Says
---------------------------------------------------------------
AT&T Corp. is facing a class-action complaint before the U.S.
District Court for the Northern District of California over
allegations that it refuses to provide Caller ID subscribers
with names of callers from outside the AT&T network, though that
information is easily accessible, CourtHouse News Service
reports.
The plaintiffs bring this class action for injunctive relief and
damages and other relief available at law and in equity on
behalf of all persons located within the United States who have
subscribed to AT&T's caller ID service anytime from July 14,
2004, to the present.
The plaintiffs say this cheats "millions of subscribers" who pay
$7.95 a month for the service.
The plaintiffs claim AT&T could provide caller ID for out-of-
network calls for less than 1 cent a query, but it refuses to do
this "for purely economic reasons."
"As a result, AT&T 'saves' itself several million dollars in
fees per month, but its Caller ID subscribers regularly receive
calls that are falsely identified as coming from callers whose
names are 'unavailable' or 'unknown.' In short, AT&T's Caller
ID subscribers are paying full price for 'half a loaf,'" the
complaint states.
The complaint further states that AT&T's Caller ID offers amount
to a bait and switch tactic.
The plaintiffs want the court to rule on:
(a) whether AT&T has a policy of not obtaining and
providing to its caller ID subscribers many of the
names of incoming callers from outside AT&T's network;
(b) whether AT&T informs its caller ID subscribers of the
policy not to obtain and provide many of the names of
incoming callers from outside AT&T's network;
(c) the extent to which AT&T failed to provide plaintiffs
and the class names of incoming callers that are
actually available, or not unavailable, to AT&T;
(d) whether AT&T's practices regarding its caller ID
service are unjust or unreasonable;
(e) whether AT&T's practices regarding its caller ID
services have caused AT&T to be unjustly enriched;
(f) whether AT&T has failed to disclose material facts
about its caller ID service;
(g) whether AT&T has breached its contract with caller ID
subscribers; and
(h) whether AT&T has engaged in an unfair, unlawful and/or
fraudulent business practice.
The plaintiffs ask the court:
-- for certification of the proposed class and notice
thereto to be paid by defendants;
-- to adjudge and decree that the defendants have engaged
in the conduct alleged;
-- for an injunction ordering AT&T to cease and desist from
engaging in the unfair, unlawful, and fraudulent
practices alleged in the complaint;
-- for restitution and disgorgement on certain causes of
action;
-- for compensatory and general damages according to proof
on certain causes of action;
-- for both pre- and post-judgment interest at the maximum
allowable rate on any amounts awarded;
-- for costs of the proceedings;
-- for reasonable attorneys' fees as allowed by statute;
and
-- any other and further relief that the court may deem
just and proper, including but not limited to punitive
damages.
The suit is "John M. Higdon, et al. v. AT&T Corp., et al., Case
No. C08 03526," filed in the U.S. District Court for the
Northern District of California.
Representing the plaintiffs are:
Joseph G. Dicks, Esq. (jdicks@dicks-workmanlaw.com)
Linda G. Workman, Esq. (lworkman@dicks-workmanlaw.com)
Dicks & Workman, APC
750 B Street, Suite 2720
San Diego, CA 92101
Phone: 619-685-6800
Fax: 619-557-2735
BIOGEN IDEC: Plaintiffs File Brief in Appeal of Mass. Lawsuit
-------------------------------------------------------------
The plaintiffs in a purported securities fraud class action
lawsuit against Biogen Idec, Inc., filed a principal brief on
appeal in the U.S. Court of Appeals for the First Circuit in
connection with the dismissal of the case.
On March 2, 2005, the company, former Executive Chairman William
H. Rastetter, and Chief Executive Officer James C. Mullen, were
named as defendants in a purported class action suit captioned
"Brown v. Biogen Idec Inc., et al.," filed in the U.S. District
Court for the District of Massachusetts.
The complaint alleges violations of Sections 10(b) and 20(a) of
the U.S. Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder.
The action is purportedly brought on behalf of all purchasers of
the company's publicly-traded securities between Feb. 18, 2004,
and Feb. 25, 2005.
The plaintiffs allege that the defendants made materially false
and misleading statements regarding the potentially serious side
effects of its product TYSABRI in order to gain accelerated
approval from the U.S. Food and Drug Administration for the
product's distribution and sale. They assert that these
materially false and misleading statements harmed the purported
class by artificially inflating the company's stock price during
the purported class period and that company insiders benefited
personally from the inflated price by selling the company's
stock.
The plaintiffs seek unspecified damages, as well as interest,
costs and attorneys' fees.
Similar actions were also filed subsequently:
-- "Grill v. Biogen Idec Inc., et al." and
-- "Lobel v. Biogen Idec Inc., et al.,"
Other purported class representatives brought the suits on
March 10, 2005, and April 21, 2005, respectively, in the same
court. These suits have been consolidated with the Brown case.
On Oct. 13, 2006, the plaintiffs filed an amended consolidated
complaint, which, among other amendments to the allegations,
adds as defendants:
-- Peter N. Kellogg, chief financial officer;
-- William R. Rohn, former chief operating officer;
-- Burt A. Adelman, executive vice president of Portfolio
Strategy; and
-- Thomas J. Bucknum, former general counsel.
On Sept. 14, 2007, the District Court entered an order allowing
the defendants' motions to dismiss the case. On Sept. 28, 2007,
the plaintiffs filed a motion for clarification of the Court's
order allowing the defendants' dismissal motion, in which they
seek leave to amend their complaint.
In October 2007, the plaintiffs filed a notice of appeal with
the U.S. Court of Appeals for the First Circuit. The plaintiffs
then filed their principal brief on appeal on Feb. 6, 2008.
The company reported no development in the matter in its
July 22, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
The suit is "Brown v. Biogen Idec Inc., et al., Case No. 1:05-
cv-10400-RCL," filed in the U.S. District Court for the District
of Massachusetts, Judge Reginald C. Lindsay, presiding.
Representing the plaintiffs are:
Shannon L. Hopkins, Esq. (shopkins@milbergweiss.com)
Milberg Weiss Bershad & Schulman LLP
One Pennsylvania Plaza, 49th Floor
New York, NY 10119
Phone: 646-733-5768
Fax: 212-273-4445
- and -
David Pastor, Esq. (dpastor@gilmanpastor.com)
Gilman and Pastor, LLP
60 State Street, 37th Floor
Boston, MA 02109
Phone: 617-742-9700
Fax: 617-742-9701
Representing the company is:
James R. Carroll, Esq. (jcarroll@skadden.com)
Skadden, Arps, Slate, Meagher & Flom
One Beacon Street, 31st Floor
Boston, MA 02108
Phone: 617-573-4800
Fax: 617-573-4822
BROADCOM CORP: Wants California Securities Fraud Lawsuit Nixed
--------------------------------------------------------------
Broadcom Corp. is asking the U.S. District Court for the Central
District of California to dismiss an amended complaint in the
consolidated securities fraud class action lawsuit.
From August through October 2006, several plaintiffs filed these
purported shareholder class action complaints in the U.S.
District Court for the Central District of California against
Broadcom and certain of its current or former officers and
directors (Class Action Reporter,
May 10, 2007):
-- "Bakshi v. Samueli, et al., Case No. 06-5036 R (CWx),"
-- "Mills v. Samueli, et al., Case No. SACV 06-9674 DOC
R(CWx)," and
-- "Minnesota Bakers Union Pension Fund, et al. v.
Broadcom Corp., et al., Case No. SACV 06-970 CJC R
(CWx)."
The essence of the plaintiffs' allegations is that Broadcom
improperly backdated stock options, resulting in false or
misleading disclosures concerning, among other things,
Broadcom's business and financial condition.
The plaintiffs also allege that Broadcom failed to account for
and pay taxes on stock options properly, that the individual
defendants sold Broadcom stock while in possession of material
nonpublic information, and that the defendants' conduct caused
artificial inflation in Broadcom's stock price and damages to
the putative plaintiff class.
The plaintiffs assert claims under Sections 10(b) and 20(a) of
the U.S. Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder.
In November 2006 the Court consolidated the Options Class
Actions and appointed the New Mexico State Investment Council as
lead class plaintiff.
In October 2007 the federal appeals court resolved a dispute
regarding the appointment of lead class counsel.
In March 2008 the district judge entered a revised order
appointing lead class counsel. The lead plaintiff filed an
amended consolidated class action complaint in late April 2008,
naming additional defendants that include certain current
officers and directors of Broadcom as well as Ernst & Young LLP,
the company's former independent registered public accounting
firm.
The company filed a motion to dismiss the amended consolidated
class action complaint in June 2008, according to the company's
July 23, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
The suit is "Sonam Bakshi v. Henry Samueli et al., Case No.
2:06-cv-05036-R-CW," filed in the U.S. District Court for the
Central District of California, Judge Manuel L. Real, presiding.
Representing the plaintiffs are:
Michael D. Braun, Esq.
Braun Law Group
12400 Wilshire
Boulevard, Suite 920
Los Angeles, CA 90025
Phone: 310-442-7755
e-mail: service@braunlawgroup.com
- and -
Bryan L. Crawford, Esq.
Heins Mills & Olson
3550 IDS Ctr., 80 South 8th St.
Minneapolis, MN 55402
Phone: 612-338-4605
Fax: 612-338-4692
Representing the defendants are:
Gordon A. Greenberg, Esq.
McDermott Will & Emery
2049 Century Park E, 34th Fl.
Los Angeles, CA 90067-3208
Phone: 310-277-4110
Fax: 310-277-4730
- and -
Stephen S. Hasegawa, Esq. (shasegawa@irell.com)
Irell & Manella
1800 Avenue of the Stars, Ste. 900
Los Angeles, CA 90067-4276
Phone: 310-277-1010
CHILDREN'S PLACE: N.Y. Stockholder Lawsuit Dismissal Bid Denied
---------------------------------------------------------------
Judge Shira A. Scheindlin of U.S. District Court for the
Southern District of New York denied a motion seeking the
dismissal of a consolidated stockholder lawsuit filed against
The Children's Place Retail Stores, Inc., the Stanford Law
School Securities Class Action ClearingHouse reports.
September Litigation
On Sept. 21, 2007, a stockholder class action complaint was
filed against the company and certain of its current and former
senior executives in the U.S. District Court for the Southern
District of New York.
This complaint alleges, among other things, that certain of the
company's current and former officers made statements to the
investing public which misrepresented material facts about the
company's business and operations, or omitted to state material
facts required in order for the statements not to be misleading,
causing the price of the company's stock to be artificially
inflated in violation of provisions of the Exchange Act, as
amended.
The suit alleges that more recent disclosures establish the
misleading nature of these earlier disclosures.
The complaint seeks money damages plus interest, as well as
costs and disbursements of the lawsuit.
October Litigation
On Oct. 10, 2007, a stockholder class action complaint was filed
in the U.S. District Court for the Southern District of New York
against the company and certain of its current and former senior
executives.
This complaint asserts similar allegations as the September
suit. It seeks, among other relief, class certification of
the lawsuit, compensatory damages plus interest, and costs and
expenses of the lawsuit, including counsel and expert fees.
Recent Developments
The two cases have been consolidated and the plaintiffs filed
a consolidated amended class action complaint on Feb. 28, 2008.
The company, however, filed a motion to dismiss the consolidated
suit (Class Action Reporter, July 2, 2008).
Recently, Judge Scheindlin denied the move to dismiss the
shareholders' securities fraud lawsuit. The judge ruled that
the plaintiffs in the class action have provided enough evidence
for a trial to go forward.
"Had the company revealed its internal control weaknesses,
investors could have arrived at a valuation of the securities
that more accurately reflected the risk of the company," Judge
Scheindlin wrote in his ruling. "Instead, trusting that the
company possessed adequate internal controls, it is plausible
that investors believed such financial problems would be
discovered without undue delay."
The suit is "Hall, et al. v. The Children's Place Retail Stores,
Inc., et al., Case No. 07-CV-08252," filed in the U.S. District
Court for the Southern District of New York, Judge Shira A.
Scheindlin, presiding.
Representing the plaintiffs are:
Brodsky & Smith, LLC
11 Bala Avenue, Suite 39
Bala Cynwyd, PA, 19004
Phone: 610-668-7987
Fax: 610-660-0450
e-mail: esmith@Brodsky-Smith.com
Coughlin Stoia Geller Rudman & Robbins LLP
58 South Service Road, Suite 200
Melville, NY, 11747
Phone: 631-367-7100
Fax: 631-367-1173
Schiffrin Barroway Topaz & Kessler, LLP
280 King of Prussia Road
Radnor, PA 19087
Phone: 610-667-7706
Fax: 610-667-7056
e-mail: info@sbtklaw.com
COMSTOCK RESOURCES: Faces Stone Energy-Bois d'Arc Merger Lawsuit
----------------------------------------------------------------
Comstock Resources, Inc., is facing a purported class action
lawsuit in Nevada over a merger agreement wherein Bois d'Arc
Energy, Inc., will be acquired by affiliates of Stone Energy
Corp.
The putative class action lawsuit seeking certification in the
District Court of Clark County, Nevada, entitled, "Packard v.
Allison, et al., Case No. A567393," was filed against Bois d'Arc
Energy, its directors and certain of its officers, as well as
Comstock Resources, Inc., Stone Energy Corp., and Stone Energy
Offshore, L.L.C. -- a Delaware limited liability company and
wholly owned subsidiary of Stone.
This lawsuit was brought by Gail Packard, a purported Bois d'Arc
stockholder, on behalf of a putative class of Bois d'Arc
stockholders and, among other things, seeks to enjoin the named
defendants from proceeding with the merger of Bois d'Arc with
and into Stone Energy Offshore with Stone Energy Offshore
surviving the merger as a wholly owned subsidiary of Stone,
seeks to have the Agreement and Plan of Merger dated April 30,
2008, by and among Bois d'Arc, Stone, and Stone Energy Offshore
rescinded, and seeks an award of monetary damages.
The plaintiff asserts that the decisions by Bois d'Arc's
directors and Comstock to approve the Merger constituted
breaches of their respective fiduciary duties because, Ms.
Packard alleges, they did not engage in a fair process to ensure
the highest possible purchase price for Bois d'Arc's
stockholders, did not properly value Bois d'Arc, failed to
disclose material facts regarding the proposed Merger, and did
not protect against conflicts of interest arising from the
participation agreement, the parachute gross-up payments, and
the change in control and severance arrangements.
Ms. Packard also contends that Stone and Stone Energy Offshore
aided and abetted the alleged breaches of fiduciary duty by Bois
d'Arc's officers and directors, according to the company's
July 21, 2008 Form 8-K filing with the U.S. Securities and
Exchange Commission.
Comstock Resources, Inc. -- http://www.comstockresources.com/--
is engaged in the acquisition, development, production and
exploration of oil and natural gas. The Company's oil and gas
operations are concentrated onshore in the east Texas/north
Louisiana and south Texas regions and offshore in state and
federal waters of the Gulf of Mexico. Its offshore operations
are conducted through Bois d'Arc Energy, Inc. (Bois d'Arc
Energy). Comstock's oil and natural gas properties have proved
reserves of 1,048.7 billion cubic feet equivalent (Bcfe). Its
consolidated proved oil and natural gas reserve base is 80%
natural gas and 68% proved developed on a Bcfe basis as of
Dec. 31, 2007. In December 2007, Comstock acquired certain oil
and natural gas properties and related assets from SWEPI LP, an
affiliate of Shell Oil Co. In June 2007 Comstock acquired
additional working interests in oil and gas properties in the
Javelina field in South Texas from Abaco Operating LLC.
CUMBERLAND COUNTY: To Pay $4.5 Mln. to Settle Strip-Search Suit
---------------------------------------------------------------
Cumberland County is preparing to pay out $4.5 million to settle
a class action lawsuit brought against it by William Suggs, who
among many others, was illegally strip searched at the county
jail, Matt Dunn writes for South Jersey News Online.
The report relates that Mr. Suggs was arrested in Medford
Township on July 9, 2005, on a child support warrant and then
incarcerated at the Cumberland County Jail. He was given a
"visual cavity search" shortly after being admitted to the
facility, as required by the county's policy of strip searching
every inmate placed into custody.
Lawyers for Mr. Suggs believe that between Jan. 9, 2004, and
Dec. 1, 2006, as many as 9,000 people may have received similar
treatment, which they argue is prohibited under the Fourth
Amendment of the U.S. Constitution.
"The Constitution prohibits citizens arrested for misdemeanor
charges from unreasonable searches unless there is suspicion an
individual may be carrying contraband or a weapon," attorneys
stated in the complaint filed in the district court.
The suit named as defendants Cumberland County, the county jail,
Warden Glenn Saunders and other jail personnel.
Earlier this month, however, the county reached a preliminary
settlement to pay $4.5 million to anyone who may have been
illegally strip-searched. A judge is expected to sign off on
the settlement on Aug. 4.
According to the settlement, following a judge's signing off on
the deal, the county will be required to set up a Web site and
advertise that claims may be filed by anyone who may have been
illegally strip searched between the dates specified in the
lawsuit.
The report says that individuals eligible for a piece of the
settlement will have to have been arrested and charged in
Cumberland County for misdemeanors, child support violations,
traffic infractions, failing to make a payment on an outstanding
traffic ticket or failing to make a payment on an outstanding
fine for another minor crime or misdemeanor. Individuals will
also have to have been strip searched at the county jail between
Jan. 9, 2004, and Dec. 1, 2006.
The settlement places a $1,400 cap on the amount each individual
will be permitted to receive, Jersey News notes.
Mr. Saunders declined to comment on the case and declined to say
whether Cumberland County Jail's policies have been revised in
regard to strip searches.
EVANS FRUIT: Illegal Hiring Class Suit Can Proceed, Judge Says
--------------------------------------------------------------
Judge Robert Whaley has agreed to make a class-action lawsuit
out of two Yakima Valley farm workers' claims that officials at
Evans Fruit knowingly hired illegal immigrants, Mark Morey
writes for Yakima Herald-Republic.
According to the report, Judge Whaley handed down the ruling
earlier last week. However, the judge removed the company's
executive, Bill Evans, as a defendant, saying that the case
brought by the two workers had not supported claims that he
played a key role in the alleged hiring scheme.
Tim Evans, a company vice president, and Juan Marin, a Sunnyside
ranch boss, remain as defendants in the suit.
Yakima Herald notes that Evans Fruit is described by company
officials as the largest apple grower in the state.
The report recounts that the suit was filed in September 2006 by
Ambrosio Marin and Miguel Sanchez, two former full-time tractor
drivers for Evans Fruit who previously worked in seasonal
positions. Their case is being handled by Chicago attorney
Howard Foster, Esq.
In the Evans case, Mr. Foster had asked that the plaintiff class
be expanded to include any legal workers who were employed by
Evans Fruit in the four years preceding the lawsuit. Although
the size of the prospective class has not been nailed down, Mr.
Foster estimates that the company hired more than 5,000 workers
during the four-year period.
Mr. Foster said he will propose to identify the legal workers --
the potential class members -- by matching Evans' employee
rosters to Social Security databases.
The defendants continue to maintain that they did not knowingly
hire illegal immigrants, the report says.
EXELON CORP: Plaintiffs Appeal Dismissal of Illinois ERISA Suit
---------------------------------------------------------------
The plaintiffs in the matter, "Fry v. Exelon Corp. Cash Balance
Pension Plan, Case No. 1:06-cv-03723," are appealing an order
entered by the U.S. District Court for the Northern District of
Illinois that dismissed the purported class action suit.
A former employee of Commonwealth Edison Co. filed the purported
class action complaint on July 11, 2006, before the U.S.
District Court for the Northern District of Illinois, alleging
violations of the Employee Retirement Income Security Act.
The complaint alleges that Exelon's retirement plan, which
covers certain management employees of Exelon's subsidiaries,
calculates lump sum distributions in a manner that does not
comply with ERISA.
The plaintiff seeks compensatory relief from the Plan on behalf
of participants who received lump sum distributions since 2001
and injunctive relief with respect to future lump sum
distributions.
On Aug. 31, 2007, the District Court dismissed the lawsuit in
its entirety. On Dec. 21, 2007, the District Court amended its
order, in part, to allow the plaintiff to file an administrative
claim with the Plan with respect to the calculation of the
portion of his lump sum benefit accrued under the Plans prior
traditional formula.
On Jan. 16, 2008, the plaintiff filed a notice of appeal in the
U.S. Court of Appeals for the Seventh Circuit of the District
Court's dismissal of his claims, according to Commonwealth
Edison Co.'s July 23, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 30, 2008.
The suit is "Fry v. Exelon Corp. Cash Balance Pension Plan, Case
No. 1:06-cv-03723," filed in the U.S. District Court for the
Northern District of Illinois, Judge William T. Hart, presiding.
Representing the plaintiff is:
George A. Zelcs, Esq. (gzelcs@koreintillery.com)
Korein Tillery
205 N. Michigan Plaza, Suite 1950
Chicago, IL 60601
Phone: 312-641-9750
Representing the defendants is:
William F. Conlon, Esq. (wconlon@sidley.com)
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
Phone: 312-853-7000
EXELON CORP: Ill. Court Stays Proceedings in Savings Plan Suit
--------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois
issued a stay on the proceedings in a class action lawsuit
against Exelon Corp. Employee Savings Plan, Plan #003.
On Sept. 11, 2006, five individuals claiming to be participants
in the Exelon Corp. Employee Savings Plan, Plan #003, filed a
putative class action complaint before the U.S. District Court
for the Northern District of Illinois.
The complaint names as defendants Exelon, its director of
Employee Benefit Plans and Programs, the Employee Savings Plan
Investment Committee, the Compensation and the Risk Oversight
Committees of Exelon's Board of Directors and members of those
committees.
The complaint alleges that the defendants breached fiduciary
duties under Employee Retirement Income Security Act by, among
other things, permitting fees and expenses to be incurred by the
Savings Plan that allegedly were unreasonable and for purposes
other than to benefit the Savings Plan and participants, and
failing to disclose purported "revenue sharing" arrangements
among the Savings Plan's service providers.
The plaintiffs seek declaratory, equitable and monetary relief
on behalf of the Savings Plan and participants, including
alleged investment losses.
On Feb. 21, 2007, the district court granted the defendants'
motion to strike the plaintiffs' claim for investment losses.
On June 27, 2007, the district court granted the plaintiffs'
motion for class certification.
On June 28, 2007, the district court granted the defendants'
motion to stay proceedings in this action pending the outcome of
the forthcoming appeal to the U.S. Seventh Circuit Court of
Appeals in another case not involving Exelon.
In that case, an appeal is expected to be taken from the
June 20, 2007 decision of the U.S. District Court for the
Western District of Wisconsin, which dismissed with prejudice
substantially similar claims.
Commonwealth Edison Co. reported no development in the matter in
its July 23, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
The suit is "Loomis et al. v. Exelon Corporation et al., Case
No. 1:06-cv-04900," filed in the U.S. District Court for the
Northern District of Illinois, Judge John W. Darrah, presiding.
Representing the plaintiffs is:
Elizabeth J. Hubertz, Esq. (ehubertz@uselaws.com)
Schlichter, Bogard & Denton
100 South Fourth Street, Suite 900
St. Louis, MO 63102
Phone: 314-621-6115
Representing the defendants is:
Anne E. Rea, Esq. (area@sidley.com)
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
Phone: 312-853-7000
FRESNO CALIFORNIA: $2.3-Million Deal in Homeless Suit is Final
--------------------------------------------------------------
The Class Action Reporter wrote on May 21, 2008, that U.S.
District Judge Oliver W. Wanger ruled that the city of
Fresno's past policy of sending out city workers to raid
homeless camps and destroy whatever personal property they found
there violated the U.S. Constitution. Specifically, Judge
Wanger ruled that Fresno's "clean up" policy in homeless tent
cities violated the Fourth Amendment, which bars unreasonable
searches and seizures.
As previously reported, the city was named defendant in a class-
action lawsuit brought by homeless people who claim police and
sanitation workers violated their constitutional rights in at
least 20 different sweeps from 2004 to 2006.
Judge Wanger last year granted class-action status to the
lawsuit, entitled "Kincaid, et al. v. City of Fresno, et al.,"
which was commenced on behalf of six homeless Fresno residents.
The American Civil Liberties Union of Northern California is one
of two organizations that filed the suit on Oct. 17, 2006. The
other is the Lawyers' Committee for Civil Rights.
Other defendants named in the lawsuit are:
-- California Department of Transportation,
-- Fresno Mayor Alan Autry,
-- Police Chief Jerry Dyer,
-- Police Capt. Greg Garner,
-- Caltrans director Will Kempton, and
-- other city employees.
In his certification ruling, Judge Wanger said that the class
would cover "all persons in the city of Fresno who were or are
homeless, without residence, after Oct. 17, 2003, and
whose personal belongings have been unlawfully taken in a sweep,
raid or cleanup by any of the defendants."
In an update, the Associated Press relates that Judge Wanger
has finalized a $2.3-million settlement between the city and
hundreds of homeless residents.
Judge Wanger also awarded attorneys fees of $750,000 to the ACLU
and other lawyers who worked on the class action lawsuit.
According to the AP report, Fresno Mayor Alan Autry did not
attend last week's proceedings, but he has been critical of the
attorneys fees that were requested. Mayor Autry has called the
case "white-collar exploitation of the homeless by the court and
the lawyers."
The AP notes that Judge Wanger took issue with Mayor Autry's
criticism, and noted that the ACLU and other attorneys on the
case could have sought more than $2.7 million and that some
attorneys worked for free.
The suit is "Kincaid, et al. v. City of Fresno, et al., Case No.
1:06-cv-01445-OWW-SMS," filed in the U.S. District Court for the
Eastern District of California under Judge Oliver W. Wanger,
with referral to Judge Sandra M. Snyder.
Representing the plaintiff is:
Paul Alexander, Esq. (paul.alexander@hellerehrman.com)
Heller Ehrman, LLP
275 Middlefield Road
Menlo Park, CA 94025-3506
Phone: 650-324-7000
Fax: 650- 324-0638
Representing the defendants is:
James B. Betts, Esq. (bettswrightlaw@sbcglobal.net)
Betts & Wright
P.O. Box 28550, Fresno, CA 93729
Phone: 559-438-8500
Fax: 559-438-6959
INSURANCE COS: Sued Over Refused Post-Award Interest Payment
------------------------------------------------------------
Insurance companies are facing a class-action complaint in the
Commonwealth of Massachusetts over allegations that they refuse
to pay post-award interest on arbitration awards, CourtHouse
News Service reports.
The named defendants in the complaint are:
-- OneBeacon America Insurance
-- Commercial Union Insurance,
-- Mass. Homeland Insurance,
-- CU Homeland Insurance,
-- The Northern Insurance Co. of America,
-- CGU Insurance,
-- General Accident Insurance,
-- Pennsylvania General Insurance,
-- Employers' Fire Insurance, and
-- American Employers' Insurance.
The plaintiffs bring this action as a class action pursuant to
G.L. c. 93A and Massachusetts Rule of Civil Procedure 23 on
behalf of all persons or entities who obtained arbitration
awards against OneBeacon and OneBeacon insureds under
Massachusetts automobile insurance policies, including
arbitration awards on underinsured, uninsured and bodily injury
claims, and who have not been paid interest on the arbitration
awards from the date of the award until the date of receipt of
payment due on the award.
The plaintiffs want the court to rule on:
(a) whether the plaintiff and the class are entitled to
interest on their arbitration awards;
(b) whether the defendants' failure to pay interest on
arbitration awards is a breach of their obligations
under the insurance policies issued by defendants; and
(c) whether the plaintiff and the class are entitled to
damages and if so the proper measure of damages.
The plaintiffs ask the court for:
-- an order determining that this action is a proper class
action and certifying plaintiff as representative of the
class;
-- an order confirming and entering judgment for the post-
award interest on arbitration awards of plaintiff and
class members pursuant to Massachusetts General Laws
Chapter 251 Sections 11, 14;
-- an order awarding plaintiff and the class damages,
together with interest and costs;
-- an order awarding plaintiff and the class three times
the amount of their damages, with interest, plus
reasonable attorneys' fees and costs; and
-- an order awarding plaintiff and the class such other and
further relief as may be just and appropriate.
The suit is "William Meaney, et al. v. OneBeacon America
Insurance Co., et al., Case No. 08-3281-BLS," filed in the
Commonwealth of Massachusetts.
Representing the plaintiffs are:
Thomas G. Shapiro, Esq.
Adma M. Steward, Esq.
Shapiro Haber & Urmy LLP
53 State Street
Boston, MA 02209
Phone: 617-439-3939
KFC US: Feb. 13, 2009 Hearing Set for Labor Suit Certification
--------------------------------------------------------------
A Feb. 13, 2009 hearing was set for the putative class action
lawsuit in California styled, "Baskall v. KFC U.S. Properties,
Inc.," which was was filed against KFC U.S. Properties, Inc., a
division of YUM! Brands, Inc.
The suit was filed with the San Diego County Superior Court on
Dec. 21, 2007. It was brought on behalf of all current and
former Restaurant General Managers, Assistant Unit Managers, and
Shift Supervisors who worked at KFC's California restaurants
since Dec. 18, 2003.
The suit alleges violations of California's wage and hour and
unfair competition laws, including denial of sufficient meal and
rest periods, improperly itemized pay stubs, and delays in
issuing final paychecks, and seeks unspecified amounts in
damages, injunctive relief, and attorneys' fees and costs.
A first amended complaint was filed on Feb. 5, 2008. KFC
answered the amended complaint on March 21, 2008.
A case management conference was held on June 13, 2008, at which
time the court scheduled a hearing on the plaintiff's expected
motion for class certification on Feb. 13, 2009, according to
YUM! Brands' July 22, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
July 21, 2008.
YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service
restaurant with over 34,000 units in more than 100 countries and
territories. YUM consists of six operating segments: KFC, Pizza
Hut, Taco Bell, Long John Silver's and A&W All-American Food
Restaurants, YUM Restaurants International and YUM Restaurants
China.
LAURIN MARITIME: Oil Spill Lawsuit Demands Millions in Damages
--------------------------------------------------------------
A class-action complaint filed on July 24, 2008, before the U.S.
District Court for the Eastern District of Louisiana demand
millions of dollars in damages, including punitive damages, for
the massive oil spill that has closed the Mississippi River from
New Orleans to the Gulf of Mexico and contaminated nearly 100
miles of the river and its shores, CourtHouse News Service
reports.
This is a class action pursuant to Rule 23 of the Federal Rules
of Civil Procedure. It seeks to recover damages suffered by the
plaintiffs and the class as a result of the July 23 collision.
The defendants in the case are:
-- Laurin Maritime, the Houston firm that operates the
Liberian-flagged tanker MV Tintomara;
-- that ship's owner, Gibraltar-based Whitefin Shipping Co.
Limited;
-- American Commercial Lines Inc., the Indiana company that
owns the barge;
-- DRD Towing, the Harvey company that owns the tug M/V Mel
Oliver; and
-- the New Orleans-Baton Rouge Steamship Pilots
Association, one of whose members was in command of the
Tintomara at the time of the collision.
The oil spill began on the night of July 23 when a 61-feet barge
carrying 410,000 gallons of heavy fuel oil struck a 600-feet
tanker, which did not leak, near the Crescent City bridge.
Barge DM932, being towed by the tugboat Mel Oliver, split in
half after striking the Liberian-flagged tanker Tintomara, one
complaint states.
The New York Times reported that Coast Guard officials said DRD
Towing, which was pushing the barge, was improperly licensed,
possessing only the equivalent of an apprentice certificate.
River traffic has been closed for the nearly 100-mile length of
the oil spill, stranding 65 boats, the N.Y. Times reported. The
river walk in New Orleans French Quarter was then virtually
deserted, under a chemical stench, the report said.
The plaintiffs bring this action on behalf of all persons and
entities in the Parish of Orleans and surrounding Parishes which
have sustained injuries, loss, and damages as a result of the
July 23 collision resulting in an oil spill of over
approximately 500,000 gallons of No. 6 Heavy Fuel Oil into the
Mississippi River, together with the known hazardous components
of that substance.
The plaintiffs want the court to rule on:
(a) whether the defendants caused and contributed to the
collision and oil spill;
(b) whether the defendants' actions were negligent;
(c) whether the collision and oil spill have caused
environmental or other damage; and
(d) the amount of damages the plaintiffs and the class
should receive in compensation.
The plaintiffs ask the court for:
-- an order certifying the class for the purpose of going
forward with any one or all of the causes of action
alleged; appointing plaintiffs as class representatives;
and appointing plaintiffs' counsel as class counsel;
-- economic and compensatory damages in amounts to be
determined at trial, but not less than the $5 million
required by the Class Action Fairness Act which
establishes the court's jurisdiction to hear the case;
-- punitive damages;
-- pre-judgment and post-judgment interest at the maximum
rate allowable by law;
-- attorney's fees and costs of litigation;
-- such other and further relief available under all
applicable state and federal laws and any relief the
court deems just and appropriate; and
-- a trial by jury as to all defendants.
The suit is "Austin Sicard, et al. v. Laurin Maritime (America)
Inc. et al., Case No. 08-4012," filed in the U.S. District Court
for the Eastern District of Louisiana.
Representing the plaintiffs are:
Hugh P. Lambert, Esq. (Hlambert@lambertandnelson.com)
Linda J. Nelson, Esq. (Lnelson@lambertandnelson.com)
E. Alexis Bevis, Esq. (Alexis@lambertandnelson.com)
Lambert & Nelson, PLC
701 Magazine Street
New Orleans, LA 70130
Phone: 504-581-1750
Fax: 504-529-2931
e-mail: Law@lambertandelson.com
MENU FOODS: Final Hearing for Pet Food MDL Deal is on Oct. 14
-------------------------------------------------------------
The United States District Court for the District of New Jersey
has scheduled an October 14, 2008 hearing to consider final
approval of a $24-million settlement in the Pet Food Multi-
District Litigation against Menu Food Holdings Inc. and a dozen
other groups of defendants, BizJournals reports.
As reported in the Class Action Reporter on June 8, 2007,
numerous class action suits have been filed against Menu Food
over its recalled pet food, which has been blamed for numerous
pet deaths. In the United States, dozens of cases against Menu
Foods and many of the companies that own private pet food labels
were consolidated in a federal court in Camden, New Jersey.
According to the CAR report, the mediated settlement of the
so-called multi-district litigation, which combined various
class-action suits filed in the United States, came just over a
year after dog and cat owners were panicked by news that
products from the maker of store-brand pet food had been tainted
by Chinese-supplied wheat gluten laced with poisonous melamine.
In April, Menu Foods announced a "comprehensive cross-border
agreement in principle" on litigation arising from its tainted
pet food scandal (Class Action Reporter, April 4, 2008).
The settlement, the company said, is to be funded by the income
trust and its insurer.
In June 2008, the United States District Court for the District
of New Jersey preliminarily approved the comprehensive
Settlement Agreement in the Pet Food Multi-District Litigation
(Class Action Reporter, June 3, 2008).
The Settlement Agreement would resolve more than 100 class
action lawsuits filed in U.S. and Canadian courts. Similar
motions for approval will soon be heard in the Canadian courts.
The Settlement Agreement creates a Settlement Fund of
US$24 million that will allow a potential recovery of up to 100%
of all economic damages incurred by pet owners, subject to
certain limitations. The Settlement Fund, administered by a
neutral claims administrator, will be available to persons in
the United States and Canada who purchased or obtained, or whose
pets used or consumed, recalled pet food.
Pursuant to the Settlement Agreement, the Settlement Fund will
be funded by the defendants, including Menu Foods and its
product liability insurer. Menu Foods' corporate contribution
to the settlement is within its previously published estimate
for recall costs of CDN$55 million.
BizJournals recounts that Menu Foods has already distributed
$8 million to some plaintiffs, who will not be eligible to make
claims in this settlement. Two Chinese firms and one American
company, ChemNutra Inc. of Las Vegas, were indicted by a federal
grand jury in connection with the contamination.
Persons with potential claims should not contact Menu Foods, but
can contact the claims administrator as follows:
In re Pet Food Products Liability Litigation
Claims Administrator
c/o Heffler, Radetich & Saitta LLP
P.O. Box 890
Philadelphia, PA 19105-0890
Phone: 1-800-392-7785
Web site: http://www.petfoodsettlement.com/
NUVELO INC: Court Yet to Rule on Securities Suit Dismissal Bid
--------------------------------------------------------------
The U.S. District Court for the Northern District of California
has yet to rule on a motion seeking the dismissal of a
consolidated securities fraud complaint filed against Nuvelo,
Inc.
The company and certain of its former and current officers and
directors were named as defendants in the purported securities
class action suit, which was filed on Feb. 9, 2007.
The suit alleges violations of the U.S. Securities Exchange Act
of 1934 related to the clinical trial results of alfimeprase,
which the company announced on Dec. 11, 2006. Specifically, the
suit alleges that the company misled investors regarding the
efficacy of alfimeprase and the drug's likelihood of success.
The suit seeks unspecified damages on behalf of purchasers of
company's common stock during the period between Jan. 5, 2006,
and Dec. 8, 2006.
Three additional lawsuits were filed in the Southern District of
New York in February and March 2007.
On April 18, 2007, the company filed a motion to transfer all
four cases to U.S. District Court for the Northern District of
California. The transfer motion was granted by the New York
Court in July 2007.
Separate motions to consolidate the cases, appoint lead
plaintiff, and appoint lead plaintiff's counsel were
subsequently filed. A consolidated complaint was then filed in
the Northern District of California on Nov. 9, 2007.
On Dec. 21, 2007, the company filed a motion to dismiss the
plaintiffs' consolidated complaint. The plaintiffs filed an
opposition to the company's dismissal request on Feb. 4, 2008.
On June 12, 2008, the Court held a hearing on the dismissal
motion. This motion is still pending as no ruling has been
issued yet, according to the company's July 24, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2008.
The suit is "Electrical Workers Pension Fund, Local 103,
I.B.E.W. v. Nuvelo, Inc. et al., Case No. 1:07-cv-00975-HB,"
filed in the U.S. District Court for the Northern District of
California, Judge Harold Baer, presiding.
Representing the plaintiffs is:
Mario Alba, Jr., Esq. (malba@csgrr.com)
Coughlin, Stoia, Geller, Rudman & Robbins, LLP
58 South Service Road, Suite 200
Melville, NY 11747
Phone: 631-367-7100
Fax: 631-367-1173
Representing the defendants is:
Marisa Megur Seifan, Esq. (mseifan@cooley.com)
Cooley Godward Kronish LLP
1114 Avenue of the Americas
New York, NY 10036
Phone: 212 479-6204
Fax: 212 479-6275
PHONE COS: Face Pennsylvania Suit Over Illegal Tax Collection
-------------------------------------------------------------
Cellco Partnership (doing business as Verizon Wireless), Verizon
Communications, and Vodafone Group PLC are facing a class-action
complaint before the U.S. District Court for the Eastern
District of Pennsylvania over allegations the companies
illegally collect state and local taxes on prepaid wireless
telephone service cards purchased at Verizon Wireless kiosks,
CourtHouse News Service reports.
The plaintiffs bring this class action on behalf of all
Pennsylvania residents who purchased Verizon Wireless Prepay
services and Verizon Wireles INpulse Pay as You Go services and
Refill Cards from defendants pursuant to a Verizon Wireless
Prepay Customer Agreement, to recover excess State and Local
sales tax charged on each occasion that such services were
purchased from defendants at a Verizon Wireless kiosk.
The plaintiffs want the court to rule on:
(a) whether the defendants charged excess state and local
sales tax on an all Verizon Wireless Prepay services
purchased from a Verizon Wireless kiosk, Verizon
Wireless Store, or other authorized dealer;
(b) whether the defendants retained the excess state and
local sales tax charged on Verizon Wireless Prepay
services; and
(c) whether the defendants remitted excess state and local
sales tax charged on Verizon Wireless Prepay services
to the Pennsylvania Department of Revenue.
The plaintiffs request judgment for:
-- injunction against any future imposition or collection
of excessive state and local sales tax;
-- damages in an amount triple the excessive state and
local sales tax collected by defendants;
-- declaratory relief against the enforcement of
defendants' class-action waiver arbitration clause
contained in the Verizon Wireless Prepay Customer
Agreement;
-- interest; and
-- attorneys' fees and costs of this suit.
The suit is "David Eisenstadt, et al. v. Cellco Partnership,"
filed in the U.S. District Court for the Eastern District of
Pennsylvania.
Representing the plaintiffs are:
Sol H. Weiss, Esq.
Bernard W. Smalley, Esq.
Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley PC
1710 Spruce Street
Philadelphia, PA 19103
Phone: 215-735-1130
SUNOPTA INC: Faces Shareholders' Lawsuit in N.Y. Federal Court
--------------------------------------------------------------
SunOpta, Inc., is facing purported shareholders' class action
lawsuit before the U.S. District Court for the Southern District
of New York
Subsequent to the company's press release on Jan. 24, 2008, in
which it downgraded previously issued earnings expectations and
announced the restatement of prior quarterly financial
statements due to a significant write-down and other
adjustments, the company and certain officers (one of whom is a
director) and a former director were named as defendants in
several proposed class action lawsuits in the U.S.
These lawsuits were filed before the U.S. District Court for the
Southern District of New York on behalf of shareholders who
acquired securities of the company between May 8, 2007, and
Jan. 25, 2008.
The lawsuits allege, among other things, violations of U.S.
federal securities laws, misrepresentations and insider trading.
These lawsuits are in a preliminary phase and are expected to be
consolidated into one class action with a lead plaintiff.
SunOpta Inc. -- http://www.sunopta.com/-- has three operating
groups: The SunOpta Food Group (Food Group), Opta Minerals Inc.
(Opta Minerals), and The SunOpta BioProcess Group. The Food
Group accounted for approximately 89% of the Company's revenues
during the year ended Dec. 31, 2006. This Group has vertically
integrated operations throughout North America. In addition to
the SunOpta Food Group, SunOpta owns 70.4% of Opta Minerals Inc.
(Opta Minerals), formerly the Opta Minerals Group of the
Company, which produces, imports, distributes and recycles
industrial abrasives, specialty minerals and related products.
The SunOpta BioProcess Group provides process solutions for the
biomass industry from process development and design through the
sale of biomass processing technology.
SUNOPTA INC: Faces Shareholders' Lawsuit in Ontario Court
---------------------------------------------------------
SunOpta, Inc., is facing a purported shareholders' class action
lawsuit in Canada, specifically before the Ontario Superior
Court of Justice, according to the company's July 21, 2008 Form
10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended Dec. 31, 2007.
Subsequent to the company's press release on Jan. 24, 2008, in
which it downgraded previously issued earnings expectations and
announced the restatement of prior quarterly financial
statements due to a significant write-down and other
adjustments, the company and certain officers (one of whom is a
director) and a former director were named as defendants in
several proposed class action lawsuits in the U.S.
Similarly, a proposed class action lawsuit has also been filed
in Canada in the Ontario Superior Court of Justice on behalf of
shareholders who acquired securities of the company between
May 8, 2007, and Jan. 25, 2008, against the company and certain
officers (one of whom is a director), alleging misrepresentation
and proposing to seek leave from the Ontario court to bring
statutory misrepresentation civil liability claims under
Ontario's Securities Act.
The Canadian Action claims damages of CDN$100,000 plus punitive
damages of CDN$10,000 and other monetary relief. This action is
also in its preliminary phase and, may be consolidated if
additional class actions are commenced.
SunOpta Inc. -- http://www.sunopta.com/-- has three operating
groups: The SunOpta Food Group (Food Group), Opta Minerals Inc.
(Opta Minerals), and The SunOpta BioProcess Group. The Food
Group accounted for approximately 89% of the Company's revenues
during the year ended Dec. 31, 2006. This Group has vertically
integrated operations throughout North America. In addition to
the SunOpta Food Group, SunOpta owns 70.4% of Opta Minerals Inc.
(Opta Minerals), formerly the Opta Minerals Group of the
Company, which produces, imports, distributes and recycles
industrial abrasives, specialty minerals and related products.
The SunOpta BioProcess Group provides process solutions for the
biomass industry from process development and design through the
sale of biomass processing technology.
TACO BELL: Class Certification Request Deadline is August 1
-----------------------------------------------------------
An Aug. 1, 2008 deadline was set for plaintiffs to file their
motion for class certification in a consolidated class action
suit brought by a restaurant general manager (RGM) against Taco
Bell Corp., a division of YUM! Brands, Inc.
Initially, a putative class action lawsuit was filed in the
Orange County Superior Court on Aug. 4, 2006, against Taco Bell.
The suit is styled "Rajeev Chhibber vs. Taco Bell Corp."
On Aug. 7, 2006, another putative class action suit, styled,
"Marina Puchalski v. Taco Bell Corp.," was filed in the San
Diego County Superior Court.
Both lawsuits were filed by an RGM purporting to represent all
current and former RGMs who worked at corporate-owned
restaurants in California from August 2002 to the present.
The lawsuits allege violations of California's wage and hour
laws involving unpaid overtime and meal and rest period
violations and seek unspecified amounts in damages and
penalties.
Both cases have been subsequently consolidated in San Diego
County.
Discovery is underway, with pre-certification discovery cutoff
set for June 2, 2008. An Aug. 1, 2008 deadline has also been
set for plaintiffs to file their motion for class certification,
according to the YUM! Brands' July 22, 2008 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended July 21, 2008.
YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service
restaurant with over 34,000 units in more than 100 countries and
territories. YUM consists of six operating segments: KFC, Pizza
Hut, Taco Bell, Long John Silver's and A&W All-American Food
Restaurants, YUM Restaurants International and YUM Restaurants
China.
TACO BELL: July 27, 2009 Hearing Set in California Labor Lawsuit
----------------------------------------------------------------
A July 27, 2009 hearing was set for the purported class action
lawsuit captioned "Sandrika Medlock v. Taco Bell Corp.," which
was filed in the U.S. District Court for the Eastern District
California against Taco Bell Corp., Yum! Brands Inc., and other
related entities.
The suit, which was filed on Sept. 10, 2007, was brought on
behalf of all hourly employees who have worked for the
defendants within the last four years.
The suit alleges numerous violations of California labor laws
including unpaid overtime, failure to pay wages on termination,
denial of meal and rest breaks, improper wage statements, unpaid
business expenses and unfair or unlawful business practices in
violation of California Business & Professions Code Section
17200.
Yum! Brands was dismissed from the case without prejudice on
Jan. 10, 2008, and discovery is underway.
On March 24, 2008, the plaintiffs filed a motion for leave to
file a second amended complaint, adding a nationwide FLSA claim
for unpaid overtime. Taco Bell opposed this request, which the
court subsequently denied.
Discovery is underway, with pre-certification discovery cut-off
set for Feb. 20, 2009, and an April 20, 2009 deadline for
plaintiffs to file a motion for class certification.
A hearing on the class certification motion has been scheduled
for July 27, 2009, according to YUM! Brands' July 22, 2008 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended July 21, 2008.
The suit is "Medlock v. Taco Bell Corp., et al., Case No. 1:07-
cv-01314-OWW-DLB," filed in the U.S. District Court for the
Eastern District of California, Judge Oliver W. Wanger,
presiding.
Representing the plaintiff is:
Joseph Cho, Esq. (josephcho@initiativelegal.com)
Initiative Legal Group LLP
1800 Century Park East, Second Floor
Los Angeles, CA 90067
Phone: 310-556-5637
Fax: 310-861-9051
Representing the defendants is:
Heather Mactavish Freelin, Esq. (hfreelin@irell.com)
Irell and Manella
840 Newport Center Drive, Suite 400
Newport Beach, CA 92660
Phone: 949-760-0991
Fax: 949-760-5200
TACO BELL: Faces "Levya" Labor Violations Lawsuit in California
---------------------------------------------------------------
Taco Bell Corp. -- a division of YUM! Brands, Inc. -- is facing
a purported class action lawsuit, entitled, "Miriam Leyva vs.
Taco Bell Corp., et al."
The putative class action lawsuit was filed on June 16, 2008,
against Taco Bell Corp. and YUM! Brands in Los Angeles Superior
Court.
The case was filed on behalf of Miriam Leyva and purportedly all
other California hourly employees and alleges failure to pay
overtime, failure to provide meal and rest periods, failure to
pay wages upon discharge, failure to provide itemized wage
statements, unfair business practices and wrongful termination
and discrimination.
This case is very similar to "Medlock v. Taco Bell Corp., et
al., Case No. 1:07-cv-01314-OWW-DLB." Accordingly, on July 3,
2008, Taco Bell filed a notice of related case and request for
stay, according to YUM! Brands' July 22, 2008 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended July 21, 2008.
YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service
restaurant with over 34,000 units in more than 100 countries and
territories. YUM consists of six operating segments: KFC, Pizza
Hut, Taco Bell, Long John Silver's and A&W All-American Food
Restaurants, YUM Restaurants International and YUM Restaurants
China.
TACO BELL: Faces "Hardiman" Labor-Related Lawsuit in California
---------------------------------------------------------------
Taco Bell Corp. -- a division of YUM! Brands, Inc. -- is facing
a purported class action lawsuit entitled, "Lisa Hardiman vs.
Taco Bell Corp., et al.," according to YUM! Brands' July 22,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended July 21, 2008.
On April 11, 2008, Lisa Hardiman filed a Private Attorneys
General Act (PAGA) complaint in the Superior Court of the State
of California, County of Fresno against Taco Bell, YUM Brands,
and other related entities. This lawsuit is filed on behalf of
other aggrieved employees pursuant to PAGA. It seeks penalties
for alleged violations of California's Labor Code.
On June 25, 2008, Ms. Hardiman filed an amended complaint adding
class action allegations on behalf of hourly employees in
California very similar to the Medlock case, including
allegations of unpaid overtime, missed meal and rest periods,
improper wage statements, non-payment of wages upon termination,
unreimbursed business expenses and unfair or unlawful business
practices in violation of California Business & Professions Code
Section 17200.
YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service
restaurant with over 34,000 units in more than 100 countries and
territories. YUM consists of six operating segments: KFC, Pizza
Hut, Taco Bell, Long John Silver's and A&W All-American Food
Restaurants, YUM Restaurants International and YUM Restaurants
China.
TACO BELL: New Judge Assigned to Calif. ADA Violations Lawsuit
--------------------------------------------------------------
A new judge has been assigned to the matter "Moeller, et al. v.
Taco Bell Corp., Case No. 3:02-cv-05849," which was filed
against Taco Bell Corp., a division of YUM! Brands, Inc.,
according to YUM! Brands' July 22, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended July 21, 2008.
The purported class action suit remains pending with the U.S.
District Court for the Northern District of California. It
named Taco Bell Corp. as a defendant on Dec. 17, 2002.
On Aug. 4, 2003, the plaintiffs filed an amended complaint that
alleges, among other things, that the company discriminated
against the class of people who use wheelchairs or scooters for
mobility by failing to make its approximately 220 company-owned
restaurants in California accessible to the class.
The plaintiffs contend that queue rails and other architectural
and structural elements of the Taco Bell restaurants relating to
the path of travel and use of the facilities by persons with
mobility-related disabilities –- including parking spaces,
ramps, counters, restroom facilities and seating -- do not
comply with the U.S. Americans with Disabilities Act, the Unruh
Civil Rights Act, and the California Disabled Persons Act.
The plaintiffs have requested:
-- an injunction from the District Court ordering Taco
Bell to comply with the ADA and its implementing
regulations;
-- that the District Court declare Taco Bell in violation
of the ADA, the Unruh Act, and the CDPA; and
-- monetary relief under the Unruh Act or CDPA.
The plaintiffs, on behalf of the class, are seeking the minimum
statutory damages per offense of either $4,000 under the Unruh
Act or $1,000 under the CDPA for each aggrieved member of the
class. They contend that there may be in excess of 100,000
individuals in the class.
For themselves, the four named plaintiffs have claimed aggregate
minimum statutory damages of no less than $16,000, but are
expected to claim greater amounts based on the number of company
outlets they visited at which they claim to have suffered
discrimination.
On Feb. 23, 2004, the district court granted the plaintiffs'
motion for class certification. The district court certified a
Rule 23(b)(2) mandatory injunctive relief class of all
individuals with disabilities who use wheelchairs or electric
scooters for mobility who, at any time on or after Dec. 17,
2001, were denied, or are currently being denied, on the basis
of disability, the full and equal enjoyment of the California
Restaurants. The class includes claims for injunctive relief
and minimum statutory damages.
Pursuant to the parties' agreement, on or about Aug. 31, 2004,
the district court ordered that the trial of this action be
bifurcated so that stage one will resolve the plaintiffs' claims
for equitable relief and stage two will resolve the plaintiffs'
claims for damages.
The parties are currently proceeding with the equitable relief
stage of this action. During this stage, the company filed a
motion to partially decertify the class to exclude from the Rule
23(b)(2) class claims for monetary damages. The district court
denied this motion.
The plaintiffs then filed their own motion for partial summary
judgment as to liability relating to a subset of the California
Restaurants. The district court denied this motion as well.
On May 17, 2007, a hearing was held on the plaintiffs' motion
for partial summary judgment seeking judicial declaration that
Taco Bell was in violation of accessibility laws as to three
specific issues: indoor seating, queue rails and door opening
force.
On Aug. 8, 2007, the court granted the plaintiffs' motion in
part with regard to dining room seating. In addition, the court
granted the plaintiffs' motion in part with regard to door
opening force at some restaurants (but not all), and denied the
motion with regard to queue lines.
At a status conference on Sept. 27, 2007, the court set a trial
date of Nov. 10, 2008, with respect to not more than 20
restaurants to determine the issue of liability and common
issues.
The parties underwent mediation on March 25, 2008, without
reaching resolution.
A new trial court judge was assigned on April 4, 2008, and the
Nov. 10, 2008 trial date and all other previously set court
dates were vacated.
The court has instead ordered supplemental discovery and will
hear Taco Bell's motion for partial summary judgment regarding
statute of limitations, followed by cross motions for summary
judgment regarding ADA issues, and finally cross motions for
summary judgment regarding state law issues.
The suit is "Moeller, et al. v. Taco Bell Corp., Case No. 3:02-
cv-05849," filed in the U.S. District Court for the Northern
District of California, Judge Martin J. Jenkins, presiding.
Representing the plaintiffs are:
Timothy P. Fox, Esq. (tfox@foxrob.com)
Fox & Robertson, P.C.
910-16th Street, Suite 610
Denver, CO 80202
Phone: 303-595-9700
Fax: 303-595-9705
- and -
Brad Seligman, Esq. (bs@impactfund.org)
The Impact Fund, 125 University Ave.
Berkeley, CA 94710
Phone: 510-845-3473 ext. 304
Fax: 510-845-3654
Representing the defendant are:
Gregory A. Eurich, Esq. (geurich@hollandhart.com)
Jimmy Goh, Esq. (jgoh@hollandhart.com)
Holland & Hart, LLP
555 17th Street, Suite 3200
Denver, CO 80202
Phone: 303-295-8000
- and -
Gregory F. Hurley, Esq. (sautters@gtlaw.com)
Greenberg Traurig, LLP
650 Town Center Drive, Suite 1700
Costa Mesa, CA 92626
Phone: 714-708-6564
Fax: 714 708-6501
TOUSA INC: Bernstein Liebhard Named Lead Counsel in Durgin Case
---------------------------------------------------------------
On July 14, 2008, Judge Kenneth Marra of the United States
District Court for the Southern District of Florida appointed
Bernstein Liebhard & Lifshitz, LLP, to act as sole lead counsel
in a securities class action lawsuit captioned "Durgin v.
Technical Olympics USA, Inc., et al., Case No. 06-61844-CIV-
Marra (S.D. Fla.)."
The firm represents the Bricklayers & Trowel Trades
International Pension Fund, which the Court appointed as lead
plaintiff after the withdrawal of the originally named lead
plaintiff.
The Court ordered the filing of a consolidated class action
complaint no later than August 29, 2008.
TOUSA Inc. -- d/b/a Newmark Homes, Trophy Homes, Engle Homes,
Fedrick, and Harris Estate Homes -- (Pink Sheets:TOUSQ) a
homebuilder and financial services company operating throughout
Florida, Texas, the Mid-Atlantic, and the West.
Partner Mel E. Lifshitz stated: "We are pleased to help the Fund
recover monetary losses, improve corporate governance at TOUSA,
and hold corporate wrongdoers accountable for violations of the
law relating to the American housing market, an issue currently
plaguing the national economy."
Case Background
Beginning in December 2006, various stockholder plaintiffs
brought lawsuits seeking class-action status. The actions
allege that Technical Olympic and certain of its current and
former officers violated the U.S. Securities Exchange Act of
1934 by failing to disclose:
-- certain guaranties entered into by Technical Olympic in
connection with the Transeastern JV's acquisition of
Transeastern Properties, Inc. and related potential
liability;
-- declining conditions in the housing market in Florida;
and
-- that, as a consequence of market declines, Technical
Olympic could lose value in its investment in the joint
venture.
One of the complaints also alleges that the defendants violated
the Securities Act of 1933 by omitting material facts about the
financing of the Transeastern Properties acquisition from the
offering materials related to Technical Olympic's September 2005
offering of common stock.
The plaintiffs in each of these actions seek compensatory
damages, plus fees and costs, on behalf of themselves and the
putative class of purchasers of Technical Olympic common stock
and purchasers and sellers of options on Technical Olympic
common stock.
The suit is "George Durgin, et al. v. Technical Olympic USA,
Inc., et al., Case No. 06-CV-61844," filed in the U.S. District
Court for the Southern District of Florida Judge Kenneth A.
Marra, presiding, with referral to Judge Linnea R. Johnson.
Representing the plaintiff is:
Mel Lifshitz , Esq. (lifshitz@bernlieb.com)
Bernstein Liebhard & Lifshitz, LLP
10 East 40th Street
New York, NY 10016
Phone: 212-779-1414
Fax: 212-779-3218
Web site: http://www.bernlieb.com
Representing the company is:
David Paul Ackerman, Esq. (dackerman@alslaw.com)
Ackerman Link & Sartory
222 Lakeview Avenue, Suite 1250
West Palm Beach, FL 33401
Phone: 561-838-4100
Fax: 561-838-5305
TRM CORP: Dismisses Consolidated Securities Fraud Suit in Oregon
----------------------------------------------------------------
TRM Corporation (Pink Sheets: TRMM) announced that the
consolidated securities class action lawsuit filed against it
and certain of its officers and directors has been dismissed.
The complaint, filed in the United States District Court for the
District of Oregon in May and June 2008, sought unspecified
damages on alleged violations of federal securities laws between
March 16, 2006, and May 22, 2007.
The complaint alleges violations of federal securities laws,
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
and Rule 10b-5, including allegations of issuing a series of
material misrepresentations to the market which had the effect
of artificially inflating the market price.
The class period is from March 16, 2006, through May 22, 2007.
A motion to dismiss the case was filed and it was granted by the
court on July 23, 2008.
Headquartered in Portland, Ore., TRM Corporation (OTC: TRMM)
-- http://www.trm.com/-- is a consumer services company that
provides convenience ATM services in high-traffic consumer
environments. TRM operates the second largest non-bank ATM
network in the United States.
UBS AG: Sued for Fraudulent Promotion of Auction-Rate Securities
----------------------------------------------------------------
UBS AG was sued on July 24, 2008, by New York Attorney-General
Andrew Cuomo over allegations that the Zurich-based bank's
promotion of auction-rate securities as safe, money market-like
investments was fraudulent, Bloomberg News reports.
Mr. Cuomo wants the court to force UBS to offer to buy back at
face value $25 billion in auction-rate securities held by the
bank's customers in New York and nationwide.
Mr. Cuomo's lawsuit alleges that UBS began an "aggressive
marketing" campaign to sell the securities to investors as
demand began to wane last year, forcing the bank to step in as a
buyer at the auctions to prevent them from failing. UBS
continued selling the securities even as the market unraveled,
with at least seven bank executives involved in the marketing
campaign unloading $21 million in personal auction-rate
holdings, the attorney general said.
Bloomberg relates that Massachusetts and Texas have filed
similar complaints against UBS since the $330-billion market
collapsed in February in an effort to force the firm to
repurchase securities it marketed in their respective states.
"We believe we have nationwide jurisdiction, and we're looking
for recoveries nationwide," Mr. Cuomo said on Friday at a press
conference in New York announcing the suit. He said his
investigation into UBS and other banks that sold auction-rate
securities is continuing, and he declined to rule out additional
complaints or criminal charges.
According to Bloomberg, Mr. Cuomo's probe involves at least 18
different banks.
Bloomberg points out that state and federal regulators have been
probing Wall Street's sale of auction-rate securities since
investment banks abandoned the market in February, permitting
thousands of auctions to fail and leaving investors unable to
sell the debt. Municipalities, closed-end funds and student
loan organizations sold the long-term bonds, and the banks ran
the auctions where the interest rates were reset every week or
month.
According to the report, U.S. prosecutors and regulators are
separately investigating allegations that UBS helped wealthy
U.S. citizens conceal $20 billion in assets and evade income
taxes. The company reported a net loss of CHF25.4 billion
(US$25.6 billion) in the nine months through March, more than
any other bank hit by the global credit-market contraction.
UBS spokeswoman Karina Byrne said in an e-mail to Bloomberg that
the bank will "vigorously defend" itself against the allegations
in the suit, and "categorically rejects any claim that the firm
engaged in a widespread campaign" to shift auction-rate debt off
its books and into client accounts.
"While UBS does not believe that there was illegal conduct by
any employee, we have found cases of poor judgment by certain
individuals and are evaluating appropriate disciplinary measures
for these individuals," Ms. Byrne added.
Bloomberg notes that the bank said on July 16 that it plans to
offer to buy back as much as $3.5 billion in auction-rate
preferred shares it sold for closed-end funds. Mr. Cuomo said
that this offer is insufficient and that it needs to buy back
all the securities it sold.
UBS, which closed its municipal investment banking operations in
May, was the second-biggest underwriter of municipal auction-
rate securities behind Citigroup Inc., Bloomberg cites data from
Thomson Reuters. It held more than $11 billion of the debt on
its books when the market collapsed, the bank has said.
Bloomberg points out that Mr. Cuomo's complaint echoes the
findings in a lawsuit filed on June 26 by Massachusetts
Secretary of State William Galvin that attempted to show through
e-mails obtained from UBS that executives increased pressure on
financial advisers at the company to sell the securities as
demand from corporate cash managers waned. The suit alleges the
company failed to warn investors that the securities might
become illiquid, and instead continued to market them as cash
equivalents.
Mr. Galvin is also investigating Bank of America Corp. and
Merrill Lynch & Co. More than five states participated in a
search of the securities division headquarters of Wachovia Corp.
in St. Louis on July 17 as part of a coordinated auction-rate
probe.
The Bloomberg report says that at least 12 state securities
regulators are probing the collapse of the market, excluding New
York, according to the North American Securities Administrators
Association. The Texas State Securities Board recently filed a
notice of hearing to suspend UBS's state license, claiming the
bank engaged in fraud by marketing the long-term bonds as
"liquid investments."
Regulators in New York, Massachusetts and Texas are also seeking
damages against UBS for its sale of the securities.
Moreover, the Securities and Exchange Commission and Financial
Industry Regulatory Authority are also probing the banks.
Investors have filed about 110 arbitration claims against their
financial advisers related to auction-rate securities, according
to Nancy Condon, a spokeswoman for Financial Industry Regulatory
Authority.
UBS said in a recent securities filing that it has also been
named in three class-action lawsuits related to the securities.
The case is "People of the State of New York v. UBS Securities
LLC," filed in the New York state Supreme Court (Manhattan).
VOLKSWAGEN OF AMERICA: Potential Class Gets Mail Notification
-------------------------------------------------------------
Two readers have alerted Overlawyered of a settlement of a class
action complaint against Volkswagen of America, Inc. -- formerly
Volkswagen Group of America, Inc. -- filed in the U.S. District
Court fort he Central District of California, Walter Olson
reports.
The class includes all current owners of record or lessees of
Model year 2007 and earlier Volkswagen and audi vehicles
distributed by VWGoA for sale in the United States which are
equipped or furnished with keys or functionally similar devices
which lock and unlock any door, hatch or operational system on
a vehicle (e.g. ignition, steering, braking, engine management,
etc) in whole or in part through the matching of electronically
stored codes or other data strings which are uniquely applicable
to a specific vehicle.
The suit alleges that VWGoA failed to make certain secure codes
and encryption data strings available to locksmiths and repair
shops other than franchised Volkswagen and Audi dealers, thus
depriving consumers of potential choices in programming
computerized replacement Smart Keys, resulting in higher costs
for replacing such Smart Keys than would otherwise be the case.
VWGoA denies any wrongdoing and liability whatsoever and further
denies that this case could properly be litigated as a class
action, the report says.
In response to this lawsuit, VWGoA has provided information to
the plaintiffs' counsel, which information establishes that,
since approximately July 2004, the identical computerized
equipment needed to complete the programming of Smart Keys to
mate with specific individual vehicles which is available to
Volkswagen and Audi dealers franchised by Defendant has also
been offered for sale and lease to independent repair shops and
locksmiths, through VWGoA's parts distribution system.
VWGoA has further informed the plaintiffs' counsel that, since
July 2004, independent repair facilities and locksmiths which
have purchased and leased the required equipment are provided
access to a dedicated telephone service, which permits them to
program or mate replacement Smart Keys manufactured and
furnished through normal parts distribution channels by
Defendant to particular vehicles.
The plaintiffs' counsel have also been informed that, though
VWGoA publishes "Manufacturer's Suggested Retail Prices" for
Smart Keys (as with all items distributed through its parts
distribution system), it does not directly or indirectly set the
prices which any person, whether a franchised dealer or an
independent repair shop or locksmith, may charge a vehicle owner
or lessee for parts or labor associated with replacing and
reprogramming Smart Keys.
Lastly, VWGoA has confirmed that the prices charged by
authorized VW and Audi dealers for replacement Smart Keys are
competitive with the prices charged for replacement Smart Keys
by independent repair shops or locksmiths who sell replacement
Smart Keys and has demonstrated to the plaintiffs' counsel that
in fact there is no pattern of greater charges for key
replacement and reprogramming services by authorized dealers as
compared to charges by similarly situation comparable
independent repair facilities or locksmiths.
The plaintiffs' counsel have determined that, in light of this
information, the settlement proposed will fully and fairly
protect the interests of the Settlement Class while by providing
upgraded customer communications in these areas based on these
facts, VWGoA and counsel for the Settlement Class have agreed to
a proposed settlement which, if approved by the Court, will
result in the dismissal of this action based upon VWGoA's
implementation of an information program consisting of all of
these steps:
a. VWGoA shall maintain in place the systems and procedures
described above and herein, or their substantive
equivalent, through January 1, 2013, in a manner
reasonably designed to furnish a functioning replacement
Smart Key to any vehicle owner or lessee who seeks to
purchase one or more Smart Keys from an independent
repair shop or locksmith which is appropriately equipped
to program or mate Smart Keys with specific vehicles
identified with a correct Vehicle Identification Number;
b. Such systems and procedures shall provide a Smart Key
that has been or can be programmed or mated with a
specific Volkswagen or Audi vehicle identified with a
correct VIN to an overnight or other express shipper
designated by the ordering independent repair shop or
locksmith within one business day of the time at which
the ordering independent repair shop or locksmith
certifies to Defendant that such vehicle owner or lessee
has provided satisfactory proof to the independent
repair shop or locksmith of his or her identity and
vehicle ownership or status as the lessee of the
specific vehicle identified by its Vehicle
Identification Number;
c. Vehicle Owner's literature for Volkswagen and Audi
vehicles distributed by VWGoA shall disclose the facts
that:
(1) Smart Keys may be programmed or mated with specific
vehicles by independent repair shops and locksmiths
which are appropriately equipped to do so as well as
by authorized dealers;
(2) that a current list of such independent repair shops
and locksmiths may be accessed on the company’s
websites -- http://www.vw.comand
http://www.audiusa.com;and
(3) that information as to the identities and locations
of such facilities may be obtained through the toll
free Customer Care telephone numbers maintained by
Defendant;
d. An Insert or Supplement for Owner's Manuals meeting the
requirements of paragraph a above is included with this
Notice;
e. The Insert or Supplement included with this Notice is
being furnished to dealers or otherwise added to Owner’s
literature in Subject Vehicles where Owner’s Literature
has already been printed. In the case of vehicles in
dealer inventory, sufficient supplies of such inserts
shall be made available to dealers to insure that such
insert can be placed in the Owner's Literature for all
vehicles in dealer inventory;
f. Personnel staffing the Customer Care telephone exchange
maintained by VWGoA shall be provided with written
guidance and appropriate training concerning the
information set forth;
g. VWGoA shall include in its websites disclosures, which
shall, at a minimum, be accessible through a site search
on the phrases "replacement key" and "Smart Key;" and
h. Defendant shall draft and disseminate a brochure (or
similar point of sale disclosure) that contains the
disclosures set forth and that decribes, among other
things, the operation of the Smart Keys, how and where
to obtain replacement Smart Keys and general information
regarding the cost of obtaining a replacement Smart Key.
These brochures shall be distributed to authorized VW and Audi
dealerships. To the extent that any state or federal statute
may at any time impose other, further and different obligations
or duties on Defendant at any time with respect to Smart Keys,
this Agreement and any Judgment which may be entered pursuant
thereto, the Court's continuing jurisdiction with respect to
implementation and enforcement of the terms of this Agreement
shall cease as of the effective date of such statute.
In the event that the Court approves the proposed settlement of
the case, VWGoA will pay attorneys' fees, plus costs and
expenses and an incentive fee to the named plaintiff, in the
amounts to be awarded by the Court to Class Counsel.
The parties will attempt to negotiate agreed amounts of such
fees, costs and incentive payment. If they are unable to agree,
the issue will be submitted to the Court. Both sides will have
the right to appeal any decision which the Court may make on a
disputed application. Any such payments will be made solely by
VWGoA and will not reduce, directly or indirectly, any of the
Settlement's benefits to Class members.
Deadline to file for exclusion and objection is on September 1,
2008.
The court will hold on September 22, 2008, at 10:00 a.m., a
fairness hearing at the the United States District Court, before
the Hon. Audrey B. Collins, for the purpose of determining
whether the proposed settlement is fair, reasonable, and
adequate and should be approved and the lawsuit dismissed.
The suit is "Glasser, et al. v. VWGoA, CV06-2562 ABC (JTLx),"
filed in the U.S. District Court fort he Central District of
California.
The Counsel for the Settlement Class is:
Jordan L. Lurie, Esq. (jlurie@weisslurie.com)
Weiss & Lurie
10940 Wilshire Blvd., 23rd Floor
Los Angeles, CA 90024
Phone: 310-208-2800
WELLPOINT INC: Settles Calif. Suits Over Rescission of Policies
---------------------------------------------------------------
WellPoint Health Networks, Inc., Blue Cross of California, and
BC Life & Health Insurance Co., managed to settle some lawsuits,
including certain class action suits, over the wrongful
rescission of individual insurance policies.
Initially, several lawsuits were filed in California state
courts on behalf of hospitals in connection with the rescission
of individual insurance policies.
On July 11, 2008, preliminary approval of the class settlement
was granted by the court in the purported class action suits
against the three defendants on behalf of California hospitals.
Final approval of the settlement with the hospital plaintiffs is
scheduled for hearing in September 2008, according to the
company's July 23, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 30, 2008.
WellPoint, Inc. -- http://www.wellpoint.com/-- is a commercial
health benefits company serving approximately 34 million medical
members as of Dec. 31, 2006.
XTO ENERGY: Still Faces Suit Over Natural Gas Royalty Payments
--------------------------------------------------------------
XTO Energy, Inc., continues to face a purported class action
lawsuit filed in January 2006 before the District Court of Texas
County, Oklahoma by royalty owners of natural gas wells in
Oklahoma.
The plaintiffs in the suit, "Beer, et al. v. XTO Energy Inc.,"
allege that XTO Energy has not properly accounted to them the
royalties to which they are entitled. They seek an accounting
regarding the natural gas and other products produced from their
wells and the prices paid for the natural gas and other products
produced, and for payment of the amount allegedly owed since
June 2002, with a certain limited number of plaintiffs claiming
amounts owed for additional time.
A hearing on class certification has not been scheduled. The
plaintiffs have not alleged, in their petition, an amount they
are seeking.
XTO Energy has informed the trustee -- Bank of America, N.A. --
that it believes that it has strong defenses to this lawsuit and
intends to vigorously defend its position.
However, if XTO Energy ultimately makes any settlement payments
or receives a judgment against it, the trust -- Hugoton Royalty
Trust -- will bear its 80% share of such settlement or judgment
related to production from the underlying properties.
Additionally, if a judgment or settlement increases the amount
of future payments to royalty owners, the trust would bear its
proportionate share of the increased payments through reduced
net proceeds.
XTO Energy further informed the trustee that, although the
amount of any reduction in net proceeds is not presently
determinable, in its management's opinion, the amount is not
currently expected to be material to the trust's annual
distributable income, financial position or liquidity.
Hugoton Royalty Trust reported no development in the matter in
its July 22, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
XTO Energy Inc. -- http://www.xtoenergy.com/-- and its
subsidiaries are engaged in the acquisition, development,
exploitation and exploration of producing oil and gas
properties, and in the production, processing, marketing and
transportation of oil and natural gas.
New Securities Fraud Cases
ARTHROCARE: Klafter & Olsen Files Texas Securities Fraud Lawsuit
----------------------------------------------------------------
Klafter & Olsen LLP has filed a class action lawsuit against
ArthroCare Corporation and certain of its officers in the U.S.
District Court for the Western District of Texas on behalf of
all persons or entities who purchased the common stock
ArthroCare from January 24, 2008, through July 18, 2008, and all
persons or entities who purchased call options or sold put
options in ArthroCare common stock from October 27, 2006,
through July 18, 2008.
ArthroCare is a medical device company that develops,
manufactures and markets minimally invasive surgical products.
Before the market opened on July 21, 2008, ArthroCare announced
that it would be restating its previously reported financial
results from the third quarter 2006 through the first quarter
2008 because it improperly recognized revenue from DiscoCare,
Inc., State of the Art Medical Products, Boracchia & Associates
and Clinical Technology, Inc.
As a result, ArthroCare indicated that it expects ArthroCare's
reported revenue in 2006 will be reduced by $4 million to
$7 million, and that for 2007, reported revenue will be reduced
by $20 million to $25 million. Further, ArthroCare revealed on
July 21, 2008, that reported revenue for the first quarter of
2008, will be reduced by $2 million to $5 million, and that "the
restatement will result in material reductions in operating
income and net income for the annual and quarterly periods being
restated." The Company also disclosed that while the
restatement is being completed, a review of the Company's
internal controls will be conducted and that further material
misstatements or misconduct might still be uncovered.
Upon that announcement, shares of ArthroCare plummeted from its
close of $40.03 on July 18, 2008, to a close of $23.21 on
July 21, 2008, the next day of trading, on extraordinary volume
-- a drop of over 42%. On July 24, 2008, the Company disclosed
that the SEC had commenced an inquiry into the circumstances
surrounding the restatement. During the period covered by the
restatement, ArthroCare's officers and directors sold nearly
$12 million worth of their personal holdings in ArthroCare.
The Complaint charges ArthroCare and certain of its officers
with violations of the Securities Exchange Act of 1934.
Specifically, the Complaint alleges that the defendants:
(1) falsely reported ArthroCare's financial results for the
quarter ended September 30, 2006, through the first
quarter ended March 31, 2008;
(2) falsely stated that the Company's financial statements
were prepared in accordance with Generally Accepted
Accounting Principles; and
(3) falsely stated that the Company had adequate internal
and financial controls. As a result of the foregoing,
the financial statements being restated by the Company
were materially false and misleading when issued.
Klafter & Olsen LLP's Web site is at
http://www.klafterolsen.com/
CIT GROUP: Coughlin Stoia Files Securities Fraud Suit in N.Y.
-------------------------------------------------------------
Coughlin Stoia Geller Rudman & Robbins LLP commenced a class
action lawsuit in the United States District Court for the
Southern District of New York on behalf of purchasers of CIT
Group Inc. common stock during the period between April 18,
2007, and March 5, 2008.
The complaint charges CIT and certain of its officers and
directors with violations of the Securities Exchange Act of
1934.
CIT is a leading commercial and consumer finance company,
providing clients with financing and leasing products and
advisory services in North America, Europe, Latin America and
Asia Pacific.
The complaint alleges that during the Class Period, defendants
made false and misleading statements about the Company's
financial condition. Specifically, CIT's public financial
statements failed to account for tens of millions of dollars in
loans to Silver State Helicopter, which were highly unlikely to
be repaid and should have been written off.
On March 6, 2008, Keefe, Bruyette & Woods issued an analyst
report on CIT lowering its first quarter 2008 earnings per share
estimate by $.08 based on concerns that CIT would have to write
down a significant portion of its private student loan
portfolio, including the risk that the Company would have to
charge off $179 million of private student loans made to
students of Silver State, which recently filed for bankruptcy.
As a result, CIT's stock price dropped $4.50 to close to $15.86
on March 6, 2008.
The plaintiff seeks to recover damages on behalf of all
purchasers of CIT common stock during the Class Period.
For more information, contact:
Darren Robbins, Esq. (djr@csgrr.com)
Coughlin Stoia Geller Rudman & Robbins LLP
655 West Broadway, Suite 1900
San Diego, CA 9210
Phone: 800-449-4900
619-231-1058
CIT GROUP: Brualdi Files Securities Fraud Suit in New York
----------------------------------------------------------
The Brualdi Law Firm, P.C., disclosed that a lawsuit has been
commenced in the United States District Court for the Southern
District of New York on behalf of purchasers of CIT Group, Inc.
common stock during the period between April 18, 2007, and
March 5, 2008.
The complaint charges CIT and certain of its officers and
directors with violations of the Securities Exchange Act of
1934.
The complaint alleges that during the Class Period, defendants
made false and misleading statements about the Company's
financial condition. Specifically, CIT's public financial
statements failed to account for tens of millions of dollars in
loans to Silver State Helicopter, which were highly unlikely to
be repaid and should have been written off.
On March 6, 2008, Keefe, Bruyette & Woods issued an analyst
report on CIT lowering its first quarter 2008 earnings per share
estimate by $.08 based on concerns that CIT would have to write
down a significant portion of its private student loan
portfolio, including the risk that the Company would have to
charge off $179 million of private student loans made to
students of Silver State, which recently filed for bankruptcy.
As a result, CIT's stock price dropped $4.50 to close to $15.86
on March 6, 2008.
For more information, contact:
Sue Lee, Esq. (slee@brualdilawfirm.com)
The Brualdi Law Firm, P.C.
29 Broadway, Suite 2400
New York, NY 10006
Phone: 877-495-1187 (toll free)
212-952-0602
Web site: http://www.brualdilawfirm.com/
SEMGROUP ENERGY: Brualdi Files Securities Fraud Suit in New York
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The Brualdi Law Firm, P.C., commenced a lawsuit in the United
States District Court for the Southern District of New York on
behalf of purchasers of SemGroup Energy Partners, L.P. common
units during the period between Feb. 20, 2008, through July 17,
2008, for violation of the federal securities laws.
The plaintiff alleges in the action that the Prospectus for the
secondary offering misrepresented the financial strength of
SemGroup's Parent (SemGroup, L.P.) and failed to disclose that
the Parent had engaged in risky hedging strategies that
presented a material risk of default and bankruptcy.
Inasmuch as SemGroup's business operations were heavily
dependent on its Parent, the true facts concerning the Parent's
financial condition were material to a reasonable investor's
decision to purchase units on the secondary offering. Those
true facts were first disclosed to investors on July 17, 2008,
when it was revealed that because of its hedging strategies the
Parent was at risk of filing for bankruptcy.
The Parent and affiliated companies subsequently filed for
bankruptcy on Monday, July 21, 2008. As a result of the July
17, 2008 disclosures and subsequent bankruptcy filing,
SemGroup's units, which closed on Wednesday, July 16, 2008, at
$22.80 per unit, plummeted to close on Wednesday, July 23, 2008,
at $8.00 per unit. Documents filed on behalf of the Parent in
Bankruptcy Court revealed that SemGroup began experiencing
financial distress in 2007 and early 2008, prior to the
secondary offering.
Interested parties may move the court no later than Sept. 19,
2008, for lead plaintiff appointment.
For more information, contact:
Sue Lee, Esq. (slee@brualdilawfirm.com)
The Brualdi Law Firm, P.C.
29 Broadway, Suite 2400
New York, NY 10006
Phone: 877-495-1187 (toll free)
212-952-0602
Web site: http://www.brualdilawfirm.com/
SEMGROUP ENERGY: Wolf Popper Files Securities Fraud Suit in N.Y.
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Wolf Popper LLP has filed a class action lawsuit against
SemGroup Energy Partners, L.P., and affiliated parties in the
United States District Court for the Southern District of New
York on behalf of investors in SemGroup on the February 13,
2008, secondary offering.
Plaintiff alleges in the action that the Prospectus for the
secondary offering misrepresented the financial strength of
SemGroup's Parent (SemGroup, L.P.) and failed to disclose that
the Parent had engaged in risky hedging strategies that
presented a material risk of default and bankruptcy.
Inasmuch as SemGroup's business operations were heavily
dependent on its Parent, the true facts concerning the Parent's
financial condition were material to a reasonable investor's
decision to purchase units on the secondary offering. Those
true facts were first disclosed to investors on July 17, 2008,
when it was revealed that because of its hedging strategies the
Parent was at risk of filing for bankruptcy. The Parent and
affiliated companies subsequently filed for bankruptcy on
July 21, 2008.
As a result of the July 17, 2008 disclosures and subsequent
bankruptcy filing, SemGroup's units, which closed on July 16,
2008, at $22.80 per unit, plummeted to close on July 23, 2008,
at $8.00 per unit. Documents filed on behalf of the Parent in
Bankruptcy Court revealed that SemGroup began experiencing
financial distress in 2007 and early 2008, prior to the
secondary offering. The Prospectus failed to disclose that the
Parent was suffering from liquidity problems, or that it was
engaged in highly risky crude oil hedge transactions that
affected its ability to continue as a going concern.
Interested parties may move the court no later than Sept. 19,
2008, for lead plaintiff appointment.
For more information, contact:
Robert C. Finkel, Esq. (rfinkel@wolfpopper.com)
Wolf Popper LLP
845 Third Avenue
New York, NY 10022
Phone: 212-451-9620
877-370-7703 (toll free)
Fax: 212-486-2093
877-370-7704 (toll free)
Web site: http://www.wolfpopper.com/
*********
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