/raid1/www/Hosts/bankrupt/CAR_Public/081030.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, October 30, 2008, Vol. 10, No. 216
Headlines
ALLSTATE CORP: Faces Okla. Lawsuit Over Denied Medical Claims
ANHEUSER-BUSCH: To Settle Suits Blocking InBev's Purchase Offer
CANDELA CORP: Faces Consolidated Securities Fraud Suit in Mass.
CENTENE CORP: Eight Circuit Upholds Dismissal of Mo. Litigation
ESCONDIDO MOBILEPARK: Faces Suit Over Unwanted Long-Term Leases
EXELON CORP: Ill. Court Stays Proceedings in Savings Plan Suit
EXELON CORP: Plaintiffs Appeal Dismissal of Illinois ERISA Suit
HELLER EHRMAN: Faces WARN Act Violations Lawsuit in California
MICRON TECHNOLOGY: Canadian DRAM Antitrust Lawsuits Drag On
MICRON TECHNOLOGY: Court Accepts Appeal in Calif. DRAM Cases
MICRON TECHNOLOGY: Ida. Court Certifies Class in Securities Suit
MICRON TECHNOLOGY: Still Faces Several SRAM Antitrust Lawsuits
NATIONAL CITY: Faces Del. Suit Over Cheap Sale to PNC Financial
NORTHERN MARIANAS: GOB Sends Uncashed Settlement Checks to Fund
POTLATCH CORP: Settles Classes' Claims in Pa. OSB Antitrust Case
ROHM & HAAS: Faces Pa. Air and Groundwater Contamination Lawsuit
ROHM & HAAS: Settles Litigation Over Kentucky Plant Pollution
SEMGROUP ENERGY: N.Y. Securities Fraud Suit Moved to Oklahoma
TOTAL WOMAN: Faces Calif. Suit Over Alleged Tapped Phone Calls
WHOLE FOODS: Overcharged Organic Produce Prompts D.C. Lawsuit
XEROX CORP: Conn. Court Considers Motions in Consolidated Suit
XEROX CORP: Conn. Court Mulls Approving "Carlson" Suit Agreement
XEROX CORP: Continues to Face "Digwamaje" Litigation in New York
XEROX CORP: Discovery Still Ongoing in Connecticut ERISA Lawsuit
XEROX CORP: N.Y. Court Approves Civil Rights Lawsuit Settlement
New Securities Fraud Cases
CANO PETROLEUM: Izard Nobel Announces Securities Suit Filing
MEDICIS PHARMACEUTICAL: Pomerantz Files Securities Fraud Suit
NEXTWAVE WIRELESS: Brower Piven Announces Suit Filing in Calif.
OSHKOSH CORP: Brower Piven Announces Securities Suit Filing
THORNBURG MORTGAGE: Glancy Binkow Files N.M. Securities Suit
*********
ALLSTATE CORP: Faces Okla. Lawsuit Over Denied Medical Claims
-------------------------------------------------------------
The Allstate Corp. is facing a class-action complaint filed in
the U.S. District Court of Oklahoma County, State of Oklahoma
accusing it of breaching of contract and bad faith denial of
medical claims, the CourtHouse News Service reports.
The plaintiff brings this civil action, pursuant to Okla. Stat.
Tit. 12, Section 2023 (2008) on behalf of all policyholders,
estates, covered persons and/or beneficiaries within the
territory of the United States who:
(1) were insured under a Cancer and Dread Disease Expense
Policy Form CPA4-1984-F or a substantially similar
supplemental cancer insurance policy owned, sold,
issued, underwritten and/or administered by defendants
that includes a benefit for radiation therapy,
chemotherapy and/or immunotherapy that promises to pay
cash benefits in connection with specified treatment
techniques, involving "chemical substances and their
administration" used for the purpose of modifying or
destroying cancerous tissue;
(2) made a claim for benefits under defendants' form of
cancer policy; and
(3) had, or through the date of final judgment in this case
will have, all or a part of said claim denied on the
basis that defendants' form cancer policy excludes
coverage for the non-cancercidal drugs, medicines,
chemical substances, instruments or devices involved
in, and supportive and protective of, a treatment
technique covered under said policy's benefit for
radiation therapy, chemotherapy and/or immunotherapy.
The plaintiff seeks damages on account of defendant's
intentional breach of contract and its duty to treat them fairly
and in good faith by intentionally failing and refusing to pay
them benefits due and owing under the terms of defendants' form
cancer policy.
The plaintiff demands judgment as follows:
-- compensatory damages against defendants in an amount in
excess of $75,000, including but not limited to unpaid
benefits and contractual interest on benefits owed;
-- punitive damages;
-- prejudgment and post judgment interest on all damages;
-- costs, including but not limited to court costs, expert
fees, attorney's fees and expenses; and
-- such other and further relief as the court deems
appropriate under the circumstances presented.
The suit is "Lona F. Buck et al v. The Allstate Corporation, et
al, Case No. CJ-2008-9638," filed in the U.S. District Court of
Oklahoma County, State of Oklahoma.
Representing plaintiffs are:
Tony Gould
George H. Brown
Brown & Gould, PLLC
701 North Broadway, Suite 510
Oklahoma City, Oklahoma 73102
Phone: (405) 235-4500
Fax: (405) 235-4507
ANHEUSER-BUSCH: To Settle Suits Blocking InBev's Purchase Offer
---------------------------------------------------------------
Anheuser-Busch Companies, Inc. will settle all shareholder
litigation in Delaware and Missouri surrounding the beer maker's
planned $52 billion merger with Belgian brewer InBev NV, the
Standford Law School Securities Class Action ClearingHouse
reports.
The suits claimed Anheuser-Busch directors had breached their
fiduciary duties by failing to maximize shareholder value and
taking defensive measures against the takeover bid.
The brewer later agreed to the deal when InBev hiked its offer
to $70 per share, or about $52 billion.
Anheuser-Busch has been battling similar suits in Missouri,
where shareholders filed three state court actions and two
federal court actions related to the merger,
The St. Louis-based brewer will pay $2.5 million in legal fees
to settle litigation with shareholders in Delaware Chancery
Court, where the company was hit with 11 lawsuits related to
InBev's initial $65 per share offer, according to Bloomberg.
Lawyers for the company and plaintiffs in Delaware state court
filed papers this week asking the judge to approve the
settlement there, which requires Anheuser-Busch to compensate
shareholders' lawyers, Bloomberg said.
A company spokeswoman was unable to provide the Standford Law
School Securities Class Action ClearingHouse additional details
about the settlement.
Anheuser-Busch Cos., Inc. -- http://www.anheuser-busch.com/--
is the holding company of Anheuser-Busch, Inc. (ABI), a beer
brewer. The Company also has subsidiaries that conduct various
other business operations. Anheuser-Busch's operations comprise
four business segments: domestic beer, international beer,
packaging and entertainment. Its principal product is beer,
produced and distributed by ABI, in a variety of containers
under various brand names.
CANDELA CORP: Faces Consolidated Securities Fraud Suit in Mass.
---------------------------------------------------------------
Candela Corp. is facing a purported consolidated securities
fraud class-action lawsuit that was filed in the U.S. District
Court for the District of Massachusetts, according to the
company's Oct. 27, 2008 Form 10-K/A filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
June 28, 2008.
On April 2 and April 22, 2008, respectively, two substantially
similar putative class-action lawsuits, entitled, "Western Pa.
Elec. Employees Pension Fund, et al., 1:08-cv-10551-DPW," and
"Caballero v. Candela Corp., et al., Civ. No. 1:08-cv-10673-
DPW," were filed against the company and two of its officers in
the U.S. District Court for the District of Massachusetts
purporting to assert claims for violations of Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder, and seeking, among other things,
compensatory damages and reasonable costs and expenses.
On June 2, 2008, the plaintiffs in the Western Pa. case formally
moved for consolidation and the appointment of lead plaintiff
and lead counsel. On July 10, 2008, that motion was granted,
the cases were consolidated, and a lead plaintiff and lead
counsel were appointed.
On August 25, 2008, the lead plaintiff filed a consolidated
amended complaint. The consolidated and amended complaint
purports to be brought on behalf of all open-market purchasers
of the company's Common Stock from Nov. 1, 2005 through Aug. 21,
2006 and alleges that the company made certain false and
misleading statements to investors expressing optimism regarding
its financial condition and failed to disclose:
-- the possibility that Palomar Medical Technologies,
Inc., one of the company's competitors, would initiate
patent enforcement litigation against the company, and
-- that the company was purportedly losing market share
to its competitors.
The suit is "Western Pennsylvania Electrical Employees Pension
Fund, et al. v. Candela Corporation, et al., Case No. 08-CV-
10551," filed before the U.S. District Court for the District of
Massachusetts.
Representing the plaintiffs are:
Coughlin Stoia Geller Rudman & Robbins LLP
58 South Service Road, Suite 200
Melville, NY, 11747
Phone: 631-367-7100
Fax: 631-367-1173
e-mail: info@csgrr.com
- and -
Shapiro Haber & Urmy LLP
52 State Street
Boston, MA, 02109
Phone: 617-439-3939
Fax: 617-439-0134
e-mail: info@shulaw.com
CENTENE CORP: Eight Circuit Upholds Dismissal of Mo. Litigation
---------------------------------------------------------------
The U.S. Circuit Court of Appeals for the Eight Circuit upheld
the dismissal of a securities fraud class-action suit against
Centene Corp. and its officers, the Standford Law School
Securities Class Action ClearingHouse reports.
The consolidated class-action lawsuit dismissed by the U.S.
District Court for the Eastern District of Missouri was
originally two separate complaints filed in July 2006 and August
2006, respectively.
Both class-action suits were filed against the company and
certain of its officers and directors on behalf of purchasers of
the company common stock from June 21, 2006, through July 17,
2006.
The suits allege that the company and certain of its officers
and directors violated federal securities laws by issuing a
series of materially false statements prior to the announcement
of the company's fiscal 2006-second quarter results.
According to the suits, these allegedly materially false
statements had the effect of artificially inflating the price of
the company's common stock, which subsequently dropped after the
issuance of a press release announcing the company's preliminary
fiscal 2006-second quarter earnings and revised guidance.
The suits were consolidated on Nov. 2, 2006, and an amended
consolidated complaint was filed in the U.S. District Court for
the Eastern District of Missouri in January 2007.
The consolidated class action asserts the same allegations, on
behalf of purchasers of the company's common stock from April
25, 2006, through July 17, 2006.
At the company's request, the court dismissed the consolidated
lawsuit on June 29, 2007. However, the plaintiffs have appealed
the dismissal order, and briefing on the appeal has been
completed.
Oral argument on the appeal was held on April 18, 2008 (Class
Action Reporter, July 28, 2008).
Recently, the appeals court ruled that the pleadings weren't
specific enough for the case to move forward.
According to Joe Jacobson -- of Green, Jacobson & Butsch in
Clayton, one of the local lawyers in the lawsuit -- it's very
difficult in the current environment to make a securities class-
action suit. Congress has passed laws, which courts have
interpreted, that basically require you to have your entire case
packed up and almost ready to try before you file a lawsuit, he
said.
In dismissing the case, the Eight Circuit specifically said that
the plaintiffs didn't meet the heightened pleading requirements
mandated by the Private Securities Litigation Reform Act of
1995.
The suit is "Larry Elam, et al. v. Centene Corp., et al., Case
No. 06-CV-1142," filed in the U.S. District Court for the
Eastern District of Missouri, Judge Catherine D. Perry,
presiding.
Representing the plaintiffs are:
Jill S. Abrams, Esq. (jabrams@abbeyspanier.com)
Abbey & Gardy
212 E. 39th Street
New York, NY 10016
Phone: 212-889-3700
- and -
Joe D. Jacobson, Esq. (jacobson@stlouislaw.com)
Green & Jacobson, P.C.
7733 Forsyth Boulevard, Suite 700
St. Louis, MO 63105
Phone: 314-862-6800
Fax: 314-862-1606
Representing the defendants are:
Jason M. Bohm, Esq. (jbohm@sidley.com)
Sidley & Austin
1 South Dearborn Street
Chicago, IL 60603
Phone: 312-853-0526
Fax: 312-853-7036
- and -
Edwin L. Noel, Esq. (enoel@armstrongteasdale.com)
Armstrong Teasdale, LLP
One Metropolitan Square, Suite 2600
St. Louis, MO 63102-2740
Phone: 314-621-5070
Fax: 314-621-5065
ESCONDIDO MOBILEPARK: Faces Suit Over Unwanted Long-Term Leases
---------------------------------------------------------------
Escondido Mobilepark West is facing a class-action complaint
filed in the Superior Court of the State of California, County
of San Diego alleging it overcharged for rent and forced
residents into "unwanted long-term leases," the CourtHouse News
Service reports.
The plaintiff brings this action on behalf members of the
MobilePark West Homeowners Association, who comprise a class,
and who within that class fall into the following separate
categories:
(1) the individual homeowners designated as original
owners;
(2) the direct transferees, defined as any person who takes
title to a mobilehome located in the Park from an
original owner, or said original owner's legal
representative;
(3) the indirect transferees, defined as any person who
takes title to a mobilehome located in the Park within
the 10 year period following court approval of the
settlement, directly from persons who took title to
said mobilehome directly from an original owner, or
said original owner's legal representative; and
(4) persons purchasing a mobile home in the Park from a
direct transferee, who are no longer able to join the
category of indirect transferee because the 10 year
period to join that class expired, and persons
purchasing a mobile home in the park who are not
mentioned in the court order at all, however, such
persons (and all mobile homeowners) are still under the
protection of all federal and state statutes in effect,
as well as the Escondido Municipal Code, including the
Escondido Mobilehome Rent Control Ordinance.
The plaintiff demands judgment as follows:
-- for general and special damages according to proof;
-- for prejudgment interest on the amount of damages
awarded;
-- for statutory penalties, including treble damages and
other monetary penalties allowed by law;
-- for punitive damages as provided by law;
-- for a declaration of the class members' rights and
responsibilities under the court order;
-- for a declaration that all leases entered into by class
members in excess of 12 months are null, void and
invalid;
-- for an order that defendants must produce to plaintiff
the records of all tenants in the park so that plaintiff
can properly identify all appropriate class members;
-- for recovery of attorney's fees and costs incurred; and
-- for such other and further relief as the court deems
just and proper.
The suit is "MobilePark West Homeowners Association et al v.
Escondido MobilePark West, Case No. 37-2008-00059630-CU-BT-NC,"
filed in the Superior Court of the State of California, County
of San Diego.
Representing plaintiff are:
Charles D. Nachand
Demetri Lahanas
Richard B. Hudson
The Law Offices of Charles D. Nachand
451 South Escondido Boulevard
Escondido, California 92025
Phone: (760) 741-2665
Fax: (760) 741-0396
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.
The company reported no development in the matter in its Oct.
24, 2008 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarter ended sept. 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
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.
The company reported no development in the matter in its Oct.
24, 2008 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarter ended sept. 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
HELLER EHRMAN: Faces WARN Act Violations Lawsuit in California
--------------------------------------------------------------
Nationwide law firm Heller, Ehrman, White & McAuliffe is facing
a class-action complaint filed in the U.S. District Court for
the Northern District of California alleging it fired more than
100 employees in violation of the Worker Adjustment and
Retraining Notification Act, 29 USC Section 2101 et seq. (the
WARN Act), the CourtHouse News Service reports.
The case arises out of the dissolution of the law firm. The
plaintiffs and proposed class members are employees who seek
wages that defendants have refuse to pay following the abrupt
termination of their employment.
The plaintiffs say the law firm told workers on Oct. 3, 2008
that they would not be paid for accrued but unused vacation
time. The firm fired more than 100 employees on Oct. 10, 2008
and hundreds more on Oct. 17, 2008, the complaint states. It
informed many others that their last day will be Nov. 28, 2008.
The suit says that plaintiffs and those they seek to represent
were discharged without cause on their part on or about Oct. 10,
2008 or within 30 days of that date, as the reasonable
foreseeable consequence of the mass layoff or plant closing
ordered by defendants, and are "affected employees" within the
meaning of 29 USC Section 2101(a)(5).
The plaintiffs want the court to rule on:
(a) whether defendants were covered employees under the
WARN Act and/or the CA WARN Act;
(b) whether all class members were protected under the WARN
Act and/or the CA WARN Act;
(c) whether all class members' employment locations were
covered facilities under the WARN Act and/or the CA
WARN Act;
(d) whether defendants acted as a single employer in
terminating class members' employment;
(e) whether defendants gave at least 60 days advance
written notice to the class members, as required by the
WARN Act and/or the CA WARN Act; and
(f) whether defendants failed to pay the class members
wages and to provide other employee benefits for the
60-day period following their respective terminations.
The plaintiffs demand relief as follows:
-- that the court determine that this action may be
maintained as a class action under Federal Rule of Civil
Procedure 23;
-- that the defendants are found to have violated the
provisions of the WARN Act as to plaintiffs and the
class;
-- that defendants are found to have violated the
provisions of the California WARN Act as to plaintiffs
and the class;
-- that defendants are found to have violated Cal. Labor
Section 227.3 requiring payment of unused vacation upon
termination;
-- that defendants are found to have breached a contract
with Washington and New York Vacation class members by
failing to pay unused vacation at the time of
termination;
-- for an award, of damages or in equity, in the amount of
unpaid vacation owed to members of the California,
Washington and New York vacation classes;
-- that defendants are found to have violated Sections 201,
202 and 203 of the California Labor Code for willful
failure to pay all compensation owed at the time of
separation to plaintiffs and the class;
-- an award to plaintiffs and the class for the amount of
all unpaid wages and compensation owed, including
interest thereon, and penalties subject to proof at
trial;
-- that defendants be ordered and enjoined to pay
restitution to plaintiffs and the 17200 class due to
defendants' unlawful activities, pursuant to Business
and Professions Code Sections 17200-05;
-- that defendants further be enjoined to cease and desist
from unlawful activities in violation of California
Business and Professions Code Section 17200;
-- for leave to amend the complaint to add additional state
law claims, including but not limited to claims in the
District of Columbia, State of Oregon, State of Alaska
and the State of Wisconsin; and
-- for such other and further relief, in law or in equity,
as the court may deem appropriate and just.
The suit is "Laura Werth et al v. Heller, Ehrman, White &
McAuliffe, Case No. C 08 4799," filed in the U.S. District Court
for the Northern District of California.
Representing plaintiffs is:
Matthew C. Helland
Nichols Kaster, LLP
One Embarcadero Center, Suite 720
San Francisco, CA 94111
Phone: (415) 277-7235
Fax: (415) 277-7238
MICRON TECHNOLOGY: Canadian DRAM Antitrust Lawsuits Drag On
-----------------------------------------------------------
Micron Technology, Inc., and other suppliers of dynamic random
access memories (DRAM) continue to face several purported class-
action lawsuits in Canada that allege violations of antitrust
statutes.
Three purported class-action lawsuits over DRAM have also been
filed in Canada, on behalf of direct and indirect purchasers,
alleging violations of the Canadian Competition Act.
The three cases have been filed in these Canadian courts:
Superior Court, District of Montreal, Province of Quebec;
Ontario Superior Court of Justice, Ontario; and Supreme Court of
British Columbia, Vancouver Registry, British Columbia.
The suits allege violations of the various jurisdictions'
antitrust, consumer protection and unfair competition laws
relating to the sale and pricing of DRAM products and seek
treble monetary damages, restitution, costs, interest and
attorneys' fees.
In May and June 2008 respectively, the plaintiffs' motion for
class certification was denied in the British Columbia and
Quebec cases. In the British Columbia case, the plaintiffs have
filed an appeal of that decision.
The company reported no development in the matter in its Oct.
27, 2008 Form 10-K Filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Oct. 8, 2008.
Micron Technology, Inc. -- http://www.micron.com/-- is a
provider of advanced semiconductor solutions. Through its
worldwide operations, Micron manufactures and markets DRAMs,
NAND flash memory, CMOS image sensors, other semiconductor
components, and memory modules for use in leading-edge
computing, consumer, networking and mobile products.
MICRON TECHNOLOGY: Court Accepts Appeal in Calif. DRAM Cases
------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit accepted
plaintiffs' interlocutory appeal in connection to several
purported antitrust class-action lawsuits against Micron
Technology, Inc., and other suppliers of dynamic random access
memories (DRAM) that were transferred to California for
consolidated proceedings.
The purported class-action lawsuits generally allege violations
of antitrust statutes.
At least 68 purported class action complaints have been filed
against the company and other DRAM suppliers in various federal
and state courts in the U.S. and in Puerto Rico on behalf of
indirect purchasers alleging price-fixing in violation of
federal and state antitrust laws, violations of state unfair
competition law, and unjust enrichment relating to the sale and
pricing of DRAM products during the period from April 1999
through at least June 2002.
Cases have been filed in these states: Arkansas, Arizona,
California, Florida, Hawaii, Iowa, Kansas, Massachusetts, Maine,
Michigan, Minnesota, Mississippi, Montana, North Carolina, North
Dakota, Nebraska, New Hampshire, New Jersey, New Mexico, Nevada,
New York, Ohio, Pennsylvania, South Dakota, Tennessee, Utah,
Vermont, Virginia, Wisconsin, and West Virginia, and also in the
District of Columbia and Puerto Rico.
The complaints purport to be on behalf of a class of individuals
and entities that indirectly purchased DRAM and products
containing DRAM in the respective jurisdictions during various
time periods ranging from April 1999 through at least June 2002.
They allege violations of the various jurisdictions' antitrust,
consumer protection and unfair competition laws relating to the
sale and pricing of DRAM products and seek treble monetary
damages, restitution, costs, interest and attorneys' fees.
A number of these cases have been removed to federal court and
transferred to the U.S. District Court for the Northern District
of California for consolidated proceedings.
On Jan. 29, 2008, the U.S. District Court for the Northern
District of California granted in part and denied in part the
company's motion to dismiss a second amended consolidated
complaint in the matter.
The plaintiffs subsequently filed a motion seeking certification
for interlocutory appeal of the decision. On Feb. 27, 2008,
the plaintiffs filed a third amended complaint.
On June 26, 2008, the U.S. Court of Appeals for the Ninth
Circuit accepted the plaintiffs' interlocutory appeal.
The company reported no development in the matter in its Oct.
27, 2008 Form 10-K Filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Oct. 8, 2008.
Micron Technology, Inc. -- http://www.micron.com/-- is a
provider of advanced semiconductor solutions. Through its
worldwide operations, Micron manufactures and markets DRAMs,
NAND flash memory, CMOS image sensors, other semiconductor
components, and memory modules for use in leading-edge
computing, consumer, networking and mobile products.
MICRON TECHNOLOGY: Ida. Court Certifies Class in Securities Suit
----------------------------------------------------------------
The U.S. District Court for the District of Idaho certified a
class in the consolidated securities fraud class action against
Micron Technology, Inc..
On Feb. 24, 2006, a putative class-action complaint was filed
against the company and certain of its officers in the U.S.
District Court for the District of Idaho, alleging claims under
Section 10(b) and 20(a) of the U.S. Securities Exchange Act of
1934, as amended, and Rule 10b-5 promulgated thereunder. Four
substantially similar complaints subsequently were filed in the
same court.
The cases purport to be brought on behalf of a class of
purchasers of the company's stock from Feb. 24, 2001, to Feb.
13, 2003.
The five lawsuits have been consolidated and a consolidated
amended class action complaint was filed on July 24, 2006.
The complaint generally alleges violations of federal securities
laws based on, among other things, claimed misstatements or
omissions regarding alleged illegal price-fixing conduct. It
seeks unspecified damages, interest, attorneys' fees, costs, and
expenses.
On Dec. 19, 2007, the Court issued an order certifying the class
but reducing the class period to purchasers of the company's
stock during the period from Feb. 24, 2001, to Sept. 18, 2002.
The company reported no development in the matter in its Oct.
27, 2008 Form 10-K Filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Oct. 8, 2008.
The suit is "City of Roseville et al. v. Micron Technology,
Inc., et al., Case No. 1:06-cv-00085-BLW," filed with the U.S.
District Court for the District of Idaho, Judge Judge B. Lynn
Winmill, presiding.
Representing the plaintiffs are:
Bruce S. Bistline, Esq.
(bbistline@gordonlawoffices.com)
Gordon Law Offices
623 W. Hays
Boise, ID 83702-5512
Phone: (208) 345-7100
Fax: 1-208-345-0050
- and -
Mary Blasy, Esq. (maryb@lerachlaw.com)
Lerach Coughlin Stoia Geller Rudman & Robbins, LLP
100 Pine St., Suite 2600
San Francisco, CA 94111
Phone: (415) 288-4545
Fax: 415-288-4534
Representing the defendants are:
Douglas W. Greene, Esq. (dgreene@wsgr.com)
Wilson Sonsini Goodrich & Rosati
701 Fifth Avenue, Suite 5100
Seattle, WA 98104
Phone: 206-883-2529
Fax: 208-883-2699
- and -
Richard H. Greener Esq. (rgreener@greenerlaw.com)
Greener Banducci Shoemaker, P.A.
950 W. Bannock St. 900
Boise, ID 83702
Phone: (208) 319-2600
MICRON TECHNOLOGY: Still Faces Several SRAM Antitrust Lawsuits
--------------------------------------------------------------
Micron Technology, Inc., along with other Static Random Access
Memory (SRAM) suppliers, is still facing a number of purported
antitrust class-action lawsuits in the U.S. and Canada over the
sale of SRAM, according to the company's
U.S. Litigation
Subsequent to the issuance of subpoenas to the SRAM industry, a
number of purported class action lawsuits have been filed
against the company and other SRAM suppliers.
Six cases have been filed in the U.S. District Court for the
Northern District of California, asserting claims on behalf of a
purported class of individuals and entities that purchased SRAM
directly from various SRAM suppliers during the period from Nov.
1, 1996 through Dec. 31, 2005.
Additionally, at least seventy-four cases have been filed in
various U.S. District Courts asserting claims on behalf of a
purported class of individuals and entities that indirectly
purchased SRAM and/or products containing SRAM from various SRAM
suppliers during the time period from Nov. 1, 1996 through Dec.
31, 2006.
In September 2008, a class of direct purchasers was certified,
and plaintiffs were granted leave to amend their complaint to
cover Pseudo-Static RAM or "PSRAM" products as well.
The complaints allege price fixing in violation of federal
antitrust laws and state antitrust and unfair competition laws
and seek treble monetary damages, restitution, costs, interest
and attorneys' fees.
Canadian Litigation
Three purported class action SRAM lawsuits also have been filed
in Canada, on behalf of direct and indirect purchasers, alleging
violations of the Canadian Competition Act.
The substantive allegations in these cases are similar to those
asserted in the SRAM cases filed in the U.S. cases.
The company reported no development in the matter in its Oct.
27, 2008 Form 10-K Filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Oct. 8, 2008.
Micron Technology, Inc. -- http://www.micron.com/-- is a
provider of advanced semiconductor solutions. Through its
worldwide operations, Micron manufactures and markets DRAMs,
NAND flash memory, CMOS image sensors, other semiconductor
components, and memory modules for use in leading-edge
computing, consumer, networking and mobile products.
NATIONAL CITY: Faces Del. Suit Over Cheap Sale to PNC Financial
---------------------------------------------------------------
National City Corp. is facing a class-action complaint filed in
the Court of Chancery in the State of Delaware alleging its
executives are granting themselves more than $41 million in
golden parachutes in selling the company too cheaply to The PNC
Financial Services Group for $5.2 billion, or $2.23 a share, the
CourtHouse News Service reports.
This is a shareholder class-action suit brought by shareholders
of National City's common stock to enjoin the proposed
acquisition of the publicly owned shares of National City common
stock by PNC.
In pursuing the unlawful plan to sell National City for grossly
inadequate consideration, each of the defendants violated
applicable law by directly breaching and/or aiding and abetting
the other defendants' breaches of their fiduciary duties of
loyalty, due care, independence, good faith and fair dealing.
Instead of properly attempting to negotiate a contract to obtain
the highest price reasonably available for the company's
shareholders, defendants engaged in an effort to tailor the
proposed transaction to meet their specific needs.
The plaintiff brings this action pursuant to Rule 23 of the
Rules of the Court of Chancery on behalf of all National City
shareholders and their successors in interest, who are or will
be threatened with injury arising from defendants' actions.
The plaintiff wants the court to rule on:
(a) whether defendants have breached their fiduciary duties
of undivided loyalty, independence or due care with
respect to plaintiff and the other members of the class
in connection with the proposed transaction;
(b) whether the individual defendants are engaging in self-
dealing in connection with the proposed transaction;
(c) whether the individual defendants have breached their
fiduciary duty to secure and obtain the best price
reasonable under the circumstances for the benefit of
plaintiff and the other members of the class in
connection with the proposed transaction;
(d) whether the individual defendants are unjustly
enriching themselves and other insiders or affiliates
of National City;
(e) whether the individual defendants have breached any of
their other fiduciary duties to plaintiff and the other
members of the class in connection with the proposed
transaction, including the duties of good faith,
diligence, honesty and fair dealing and the amount of
shareholders' damages;
(f) whether the individual defendants have breached their
fiduciary duties of candor to plaintiff and the other
members of the class in connection with the proposed
transaction by soliciting shareholder votes in favor of
the proposed transaction based upon inadequate
disclosures;
(g) whether the individual defendants, in bad faith and for
improper motives, have impeded or erected barriers to
discourage other offers for the company or its assets;
(h) whether defendants aided and abetted the individual
defendants' breaches of fiduciary duties; and
(i) whether plaintiff and the other members of the class
would suffer irreparable injury were the transactions
complained of consummated.
The plaintiff demands the following relief:
-- ordering that this action may be maintained as a class
action and certifying plaintiff ad the class
representative;
-- declaring that the proposed transaction was entered into
in breach of the fiduciary duties of the individual
defendants, that they aided and abetted the individual
defendants' breaches of fiduciary duties, and that the
proposed transaction is unlawful and unenforceable;
-- enjoining defendants, their agents, counsel, employees
and all persons acting in concert with them from
consummating the proposed transaction, unless and until
the company adopts and implements a procedure or process
to obtain a merger agreement providing the highest
possible value for shareholders;
-- directing the individual defendants to exercise their
fiduciary duties to obtain a transaction which is in the
best interests of the company's shareholders until the
process for the sale or auction of the company is
completed and the best possible consideration is
obtained in exchange for National City;
-- rescinding, to the extent already implemented, the
proposed transaction or any terms thereof including, but
not limited to, the termination fee and no solicitation
clause;
-- awarding costs and disbursements, including plaintiff's
counsel's fees and experts' fees; and
-- granting such other and further relief as to the court
may seem just and proper.
The suit is "Arthur Klein et al v. National City Corporation,
Case No. 4118," filed in the Court of Chancery in the State of
Delaware.
Representing plaintiffs are:
Seth D. Rigrodsky
Brian D. Long
Rigrogsky & Long, PA
919 North Market Street, Suite 980
Wilmington, Delaware 19801
Phone: (302) 295-5310
Fax: (302) 654-7530
NORTHERN MARIANAS: GOB Sends Uncashed Settlement Checks to Fund
---------------------------------------------------------------
The Garment Oversight Board (GOB) chairman Timothy Bellas told
Ferdie de la Torre of the Saipan Tribune that the Board is
closing on Oct. 31, 2008, and all uncashed settlement checks
will go to a Garment Workers Trust Fund.
In 1999, New York law firm Milberg Weiss Bershad & Schulman LLP
filed a lawsuit in the U.S. District Court of the Northern
Mariana Islands on behalf of some garment workers who were
allegedly made to work in sweatshop conditions.
A settlement reached five years after provided an award close to
$20 million. A $280,000 tax-related reserve was then set up.
The $130,000 tax reserve was allotted as:
* $100,000 to cover any future federal tax penalties,
* $25,000 to pay for efforts to secure abatements of all
penalties (both Commonwealth of Northern Mariana Islands
and federal), and
* $5,000 to pay for preparation of the settlement fund's
2007 and 2008 tax returns.
The $156,000 balance of the fund are be remitted to the GOB,
which has offered to assume responsibility for obtaining refunds
and penalty abatements from the CNMI tax authorities.
The board's term was originally set to expire on July 29, 2007,
but the federal court extended this up to Dec. 31, 2007 (Class
Action Reporter, July 20, 2007).
In November 2007, the GOB began mailing out some checks to 74
garment workers who had problems encashing a check they received
from the settlement (Class Action Reporter, Nov. 27, 2007)
The workers were among the 356 workers who are all entitled to
checks totaling $53,000. Mr. Bellas said the checks were
replacement checks and were not new money for the garment
workers. Mr. Bellas said the check amounts range from a minimum
of $72.27 to a maximum of $799.50.
The original checks were issued by San Francisco-based claims
administrator Gilardi and Co. They were returned to the GOB
because they have not been cashed. Mr. Bellas said either they
are outdated or there are problems with the names or other
things.
In December 2007, the GOB laid out plans to distribute more than
$2.1 million to about 600 additional garment workers who claimed
they did not get any checks from the settlement (Class Action
Reporter, Dec. 6, 2007).
The money was undistributed funds that the plaintiffs' counsel
turned over to the GOB.
In July 2008, GOB issued 11,353 new checks and will be sending
out 1,031 -- amounting to $1,599,495 -- to some current and
former garment workers pursuant to the settlement of the labor
class action (Class Action Reporter, July 22, 2008).
The checks are the second they received under the settlement.
GOB has been distributing the checks to get rid of the leftover
money from the settlement funds.
On July 21, 2008, the federal court granted GOB's request for
final extension of its term (Oct. 31, 2008) in order for the
board account the last $1.6 million in checks.
GOB is closing on Friday, and all the money coming from the
class lawsuit settlement checks that the garment workers failed
to cash will go to a Garment Workers Trust Fund.
Mr. Bellas told Saipan Tribune that Friday is GOB's closing date
therefore it will be the last day that the board will do
anything with any of the settlement checks.
He said the proposal, however, is that they're going to continue
the financial aspect until Dec. 31, 2008 to allow any of the
checks that are still outstanding to be cleared.
Mr. Bellas said the uncashed money will then be transferred to a
Garment Workers Trust Fund for a year and then after that the
money will be given to a charity.
"We've tried extensively by asking the court to extend the term
of GOB three times in order to get much of these money into the
hands of the garment workers as we can," he said.
The former judge said the GOB can only can go by the addresses
of the workers that were given to them.
"We've had a lot of situation where the workers might be here
but the addresses they gave us were back in China, or
Philippines, Bangladesh," he said.
Mr. Bellas said they sent the checks for the addresses that they
have so the relatives of the workers sent the checks back to the
workers here in the CNMI.
"So they come in and they say 'oh here's my check' and it's more
than 60 days. So we've been re-issuing checks," he said.
Mr. Bellas said every time GOB's term gets extended, its
operation expenses continue.
"We're sort of using the money for operating expenses. And so we
want to go ahead and use it for a good purpose of giving it to
the workers or giving it to charity," he added.
For more details, contact:
Pamela M. Parker, Esq.
Lerach Coughlin Stoia Geller Rudman & Robbins LLP
655 West Broadway Suite 1900
San Diego, CA 92101
Phone: 619-231-1058
Fax: 619-231-7423
Steven P. Pixley, Esq. (sppixley@aol.com)
2nd Floor, CIC Centre
Beach Rd., Garapan
P.O. Box 7757
SVRB, Saipan, MP 96950
Phone: 670-233-2898/5175
Fax: 670-233-4716
POTLATCH CORP: Settles Classes' Claims in Pa. OSB Antitrust Case
----------------------------------------------------------------
Potlatch Corp. settled the claims of both both the direct
purchasers class and the indirect purchasers class in the
purported class-action lawsuit, "In Re OSB Antitrust
Litigation," which was pending in the U.S. District Court for
the Eastern District of Pennsylvania
Beginning in February 2006, a series of private antitrust
lawsuits were filed against us and certain other manufacturers
of oriented strand board (OSB) by plaintiffs who claim they
purchased OSB at artificially high prices.
The cases were consolidated into two Consolidated Amended Class
Action Complaints in the U.S. District Court for the Eastern
District of Pennsylvania under the caption, "In Re OSB Antitrust
Litigation," one on behalf of direct purchasers of OSB and the
other on behalf of indirect purchasers.
The complaints allege that the defendant OSB manufacturers
violated federal and state antitrust laws by purportedly
conspiring from mid-2002 to the present to drive up the price of
OSB.
The consolidated indirect purchaser complaint also alleges that
defendants violated various states' unfair competition laws and
common law. Each consolidated complaint seeks an unspecified
amount of monetary damages to be trebled as provided under the
antitrust laws and other relief.
The court certified a nationwide class of direct purchasers who
bought OSB structural panel products directly from one of the
defendants during the period from June 1, 2002 to Feb. 24, 2006.
It also certified a nationwide class of indirect purchaser end
users who purchased new OSB manufactured or sold by one of the
defendants during the same time period; this class excludes
persons who only bought OSB that was incorporated into a house
or other structure. The claims of the nationwide indirect
purchaser class are limited to injunctive relief.
However, the court also certified a multistate class of indirect
purchasers in 17 states whose members may recover compensation
as allowed by state law.
Although the company vigorously denies any wrongdoing, on March
28, 2008, it tentatively settled the claims of the direct
purchaser class for $2.7 million, solely in order to avoid the
further expense and burden of the ongoing litigation.
On April 17, 2008, the company tentatively settled the indirect
purchaser class action claims for $0.3 million.
Both settlements have been preliminarily approved by the court,
but remain subject to final court approval, according to the
company's Oct. 27, 2008 Form 10-Q Filing with the U.S.
Securities and Exchange Commission for the quarter ended sept.
30, 2008.
The suit is "In Re OSB Antitrust Litigation, Master File No. 06-
CV-00826 (PSD)," filed in the U.S. District Court for the
Eastern District of Pennsylvania under Judge Paul S. Diamond.
Representing the plaintiffs are:
Mary Kay Christodoulou, Esq.
(mchristodoulou@akingump.com)
Akin Gump Strauss Hauer & Feld, LLP
One Commerce Square, 2005 Market St., Suite 2200,
Philadelphia, PA 19103
Phone: 215-965-1200
Representing the defendants are:
William P. Butterfield, Esq. (wbutterfield@cmht.com)
Cohen, Milstein, Hausfeld & Toll
1100 New York Avenue, N.W. West Tower, Suite 500,
Washington, DC 20005
Phone: 202-408-4600
- and -
Jeffrey J. Corrigan, Esq. (jcorrigan@srk-law.com)
Spector Roseman and Kodroff
1818 Market Street, Suite 2500
Philadelphia, PA 19103
Phone: 215-496-0300
ROHM & HAAS: Faces Pa. Air and Groundwater Contamination Lawsuit
----------------------------------------------------------------
Rohm & Haas Co. continues to face a purported class-action suit
before the U.S. District Court for the Eastern District of
Pennsylvania over alleged toxic contamination of air and
groundwater by one of its installations located about one mile
north of McCullom Lake Village.
The suit entitled, "Gates et al. v. Rohm and Haas company et
al., Case No. 2:06-cv-01743-GP," was filed by Glenn and Donna
Gates on April 25, 2006.
It seeks certification of a class comprised of the owners and
residents of about 500 homes in McCullom Lake Village, seeking
medical monitoring and compensation for alleged property value
diminution, among other things.
The company reported no development in the matter in its Oct.
27, 2008 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30, 2008.
The suit is "Gates et al. v. Rohm and Haas company et al., Case
No. 2:06-cv-01743-GP," filed in the U.S. District Court for the
Eastern District of Pennsylvania, Judge Gene E.K. Pratter,
presiding.
Representing the plaintiffs is:
Aaron J. Freiwald, Esq. (ajf@layserfreiwald.com)
Layser & Freiwald PC
1500 Walnut St., 18th Fl.
Philadelphia, PA 19102
Phone: 215-875-8000
Representing the defendants are:
Jennifer A. Battle (jbattle@schnader.com)
Schnader Harrison Segal & Lewis LLP
1600 Market Street, Suite 3600
Philadelphia, PA 19103-7286
Phone: 215-751-2647
- and -
Albert G. Bixler, Esq. (abixler@eckertseamans.com)
Eckert Seamans Cherin & Mellott LLC
Two Liberty Place 22nd Floor
50 South 16th Street
Philadelphia, PA 19102
Phone: 215-851-8412
ROHM & HAAS: Settles Litigation Over Kentucky Plant Pollution
-------------------------------------------------------------
Rohm & Haas Co. reaches tentative settlement for purported
class-action suit before the U.S. District Court for the Western
District of Kentucky captioned, "Donaway et al. v. Rohm and Haas
Co., Louisville Plant, Case No. 3:06-cv-00575-JGH."
The complaint was filed on Nov. 9 2006, by individuals alleging
that their persons or properties were invaded by particulate and
air contaminants from Rohm's Louisville plant. It seeks class
action certification as there are hundreds of potential
plaintiffs residing in neighborhoods within two miles of the
plant.
The company has reached a settlement in principle of this
lawsuit, according to the company's Oct. 27, 2008 Form 10-Q
Filing with the U.S. Securities and Exchange Commission for the
quarter ended Sept. 30, 2008.
The suit is the "Donaway et al. v. Rohm and Haas company,
Louisville Plant, Case No. 3:06-cv-00575-JGH," filed in the U.S.
District Court for the Western District of Kentucky, Judge John
G. Heyburn, II, presiding.
Representing the plaintiffs is:
Mark K. Gray, Esq. (mkgrayatty@aol.com)
Gray & White
500 W. Jefferson Street, Suite 1200 PNC Plaza
Louisville, KY 40202
Phone: 502-585-2060
Fax: 502-581-1933
Representing the defendant is:
Hiram Ely, III, Esq. (he@gdm.com)
Greenebaum Doll & McDonald PLLC
3500 National City Tower, 101 South Fifth Street
Louisville, KY 40202-3103
Phone: 502-587-3562
Fax: 502-540-2159
SEMGROUP ENERGY: N.Y. Securities Fraud Suit Moved to Oklahoma
-------------------------------------------------------------
A class-action lawsuit filed in the U.S. District Court for the
Southern District of New York against SemGroup Energy Partners
LP and six others for violation of federal securities laws has
been transferred to the U.S. District Court for the Northern
District Court of Oklahoma, the Standford Law School Securities
Class Action ClearingHouse reports.
According to the report, Lehman Brothers, Inc. and Citigroup
Global Markets, Inc. were named as defendants for their role as
lead underwriters in the Feb. 16 secondary offering of 6 million
shares in the Tulsa-based publicly traded company.
The lawsuit claims the prospectus offering misrepresented the
company's strength and 'risky hedging'.
The case was transferred to the Tulsa-based court by the
Judicial Panel on Multidistrict Litigation, according to an Oct.
17 letter from Phil Lombardi, clerk of the Tulsa court, to the
clerk of the New York City court.
Tulsa, Oklahoma-based SemGroup Energy Partners, L.P. (Nasdaq:
SGLP) -- http://www.SGLP.com/-- owns and operates a diversified
portfolio of complementary midstream energy assets. SemGroup
Energy Partners provides crude oil and liquid asphalt cement
terminalling and storage services and crude oil gathering and
transportation services.
SemGroup Energy Partners, L.P.'s consolidated balance sheet at
March 31, 2008, showed $262.0 million in total assets and
$316.6 million in total liabilities, resulting in a $54.6
million partners' deficit.
TOTAL WOMAN: Faces Calif. Suit Over Alleged Tapped Phone Calls
--------------------------------------------------------------
Total Woman Gym And Day Spa, of Westlake Village, is facing a
class-action complaint filed in Los Angeles Superior Court
alleging it taps phone calls to and from its offices, the
CourtHouse News Services reports.
The CourtHouse News Service did not report on any other update
to the case.
Total Woman Gym And Day Spa -- http://www.totalwomanspa.com--
is the Largest Full Service Gym & Day Spa in Southern
California.
WHOLE FOODS: Overcharged Organic Produce Prompts D.C. Lawsuit
-------------------------------------------------------------
Whole Foods Markets is facing an antitrust class-action
complaint filed in the U.S. District Court for the District of
Columbia claiming the company has overcharged for organic
produce and restrained trade since merging with its "foremost
competitor," Wild Markets, in 2007, the CourtHouse News Service
reports.
Named plaintiff Ekaterini Kottaras files this antitrust class
action pursuant to Sections 7 and 3 of the Clayton Act and
Sections 1 and 2 of the Sherman Act, on behalf of consumers, who
since Aug. 28, 2007 until the date of this action is resolved by
the entry and upholding of a final judgment of the court
purchased produce directly from defendant within the U.S.
The plaintiff brings this action to seek monetary, equitable and
injunctive relief for defendant's violations of the federal
antitrust laws, including Section 7 and 3 of the Clayton Act and
Sections 1 and 2 of the Sherman Act. This relief is to serve
redress for the thwarting of competition experienced by
consumers like plaintiff and the members of the putative class,
as well as to compensate plaintiff and the putative class
members of the supra-competitive prices that they have been
forced to pay defendant as a direct and foreseeable consequence
of defendant's antitrust violations.
The suit is "Ekaterini Kottaras et al v. Whole Foods Market,
Inc., Case No. 1:08-cv-01832," filed in the U.S. District Court
for the District of Columbia.
Representing plaintiff is:
Roy A. Katriel, Esq. (rak@katriellaw.com)
The Katriel Law Firm
1101 30th Street, NW Suite 500
Washington, DC 20007
Phone: (202) 625-4342
Fax: (202) 330-5593
XEROX CORP: Conn. Court Considers Motions in Consolidated Suit
--------------------------------------------------------------
The U.S. District Court for the District of Connecticut has yet
to rule on motions to exclude certain expert testimony in a
consolidated securities fraud lawsuit against Xerox Corp.,
styled, "In re Xerox Corporation Securities Litigation."
Initially consisting of 17 cases, the consolidated action also
named these individuals as defendants:
-- Barry Romeril,
-- Paul Allaire, and
-- G. Richard Thoman.
The suit purports to be a class action on behalf of the named
plaintiffs and all other purchasers of common stock of the
company between Oct. 22, 1998, and Oct. 7, 1999.
The amended consolidated complaint in the action alleges that in
violation of Section 10(b) and 20(a) of the U.S. Securities
Exchange Act of 1934, as amended, and SEC Rule 10b-5 thereunder,
each of the defendants is liable as a participant in a
fraudulent scheme and course of business that operated as a
fraud or deceit on purchasers of the company's common stock
during the class period by disseminating materially false and
misleading statements and concealing material facts relating to
the defendants' alleged failure to disclose the material
negative impact that the April 1998 restructuring had on the
company's operations and revenues.
The suit further claims that the alleged scheme:
-- deceived the investing public regarding the economic
capabilities, sales proficiencies, growth, operations
and the intrinsic value of the company's common
stock;
-- allowed several corporate insiders, such as the named
individual defendants, to sell shares of privately held
common stock of the company while in possession of
materially adverse, non-public information; and
-- caused the individual plaintiffs and the other members
of the purported class to purchase common stock of the
company at inflated prices.
The amended consolidated complaint seeks unspecified
compensatory damages in favor of the plaintiffs and the other
members of the purported class against all defendants, jointly
and severally, for all damages sustained as a result of
defendants' alleged wrongdoing, including interest thereon,
together with reasonable costs and expenses incurred in the
action, including counsel fees and expert fees.
In 2001, the Court denied the defendants' motion to dismiss the
complaint. The plaintiffs' motion for class certification was
also denied by the Court in 2006, without prejudice to refiling.
In February 2007, the Court granted the motion of the
International Brotherhood of Electrical Workers Welfare Fund of
Local Union No. 164, Robert W. Roten, Robert Agius and Georgia
Stanley to appoint them as additional lead plaintiffs.
In July 2007, the Court denied the plaintiffs' renewed motion
for class certification, without prejudice to renewal after the
Court holds a pre-filing conference to identify factual disputes
the Court will be required to resolve in ruling on the motion.
After that conference and Mr. Agius' withdrawal as lead
plaintiff and proposed class representative, the plaintiffs, in
February 2008, filed a second renewed motion for class
certification, which remains pending.
In April 2008, the defendants filed their response and motion to
disqualify Milberg LLP as a lead counsel. On Sept. 30, 2008,
the Court entered an order certifying the class and denying the
appointment of Milberg LLP as a lead counsel. The parties have
filed motions to exclude certain expert testimony. Briefing
with respect to those motions is complete. The Court has not
yet rendered a decision, according to the company's Oct. 27,
2008 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarter ended sept. 30, 2008.
The suit is "In Re Xerox Corp. Securities Litigation, Case No.
3:99-cv-02374-AWT," filed in the U.S. District Court for the
District of Connecticut, Judge Alvin W. Thompson, presiding.
Representing the plaintiffs are:
Bernstein Liebhard & Lifshitz LLP
10 E. 40th Street, 22nd Floor,
New York, NY 10016
Phone: 800-217-1522
e-mail: info@bernlieb.com
- and -
Hurwitz & Sagarin
147 North Broad St., P.O. Box 112
Milford, CT 06460-0112,
Phone: 203-877-8000.
Representing the defendants are:
Alfred U. Pavlis, Esq. (apavlis@dalypavlis.com)
Daly & Pavlis, LLC
107 John St.
Southport, CT 06890
Phone: 203-255-6700
Fax: 203-255-1953
- and -
Andrew N. Vollmer, Esq.
Wilmer, Cutler & Pickering,
2445 M St. NW
Washington, DC 20037-1420
Phone: 202-663-6000.
XEROX CORP: Conn. Court Mulls Approving "Carlson" Suit Agreement
----------------------------------------------------------------
The U.S. District Court for the District of Connecticut has yet
to grant final approval to the proposed settlement in the
consolidated lawsuit entitled, "Carlson, et al. v. Xerox
Corporation, et al., Case No. 3:00-cv-01621-AWT."
Initially consisting of 21 cases, the consolidated securities
class action suit also names as defendants KPMG LLP, Paul A.
Allaire, G. Richard Thoman, Anne M. Mulcahy, Barry D. Romeril,
Gregory Tayler, and Philip Fishbach.
On Sept. 11, 2002, the court entered an endorsement order
granting the plaintiffs' motion to file a third amendment to the
consolidated complaint. The defendants' motion to dismiss the
second consolidated amended complaint was denied as moot.
According to the third consolidated amended complaint, the
plaintiffs purport to bring the case as a class action on behalf
of an expanded class consisting of all persons and entities who
purchased the company's common stock and bonds between Feb. 17,
1998, and June 28, 2002, and who were purportedly damaged.
The third consolidated amended complaint sets forth two claims:
1. each of the company, KPMG, and the individual defendants
violated Section 10(b) of the 1934 Act and U.S.
Securities and Exchange Commission Rule 10b-5
thereunder; and
2. the individual defendants are also allegedly liable as
"controlling persons" of the company pursuant to Section
20(a) of the 1934 Act.
The plaintiffs claim that the defendants participated in a
fraudulent scheme that operated as a fraud and deceit on
purchasers of the company's common stock and bonds by
disseminating materially false and misleading statements and
concealing material adverse facts relating to various of the
company's accounting and reporting practices and financial
condition.
They further allege that this scheme deceived the investing
public regarding the true state of the company's financial
condition and caused the plaintiffs and other members of the
alleged class to purchase the company's common stock and bonds
at artificially inflated prices, and prompted a SEC
investigation that led to the April 11, 2002 settlement which,
among other things, required the company to pay a $10 penalty
and restate its financials for the years 1997-2000, including
restatement of financials previously corrected in an earlier
restatement which plaintiffs contend was improper.
The third consolidated amended complaint seeks unspecified
compensatory damages in favor of the plaintiffs and the other
class members against all defendants, jointly and severally,
including interest thereon, together with reasonable costs and
expenses, including counsel fees and expert fees.
On Dec. 2, 2002, the company and the individual defendants filed
a motion to dismiss the complaint, which request was denied by
the court on July 13, 2005.
On Jan. 19, 2006, the plaintiffs filed a motion for class
certification.
On July 18, 2007, the court entered an order denying the
plaintiffs' motion for class certification, without prejudice to
renewal after the court holds a pre-filing conference to
identify factual disputes the Court will be required to resolve
in ruling on the motion.
The plaintiffs have filed notices of withdrawal of proposed
class representatives Sol Sachs, Leonard Nelson and Fernan
Cepero.
The court has approved the plaintiffs' notice of withdrawal of
proposed class representative Fernan Cepero.
On March 27, 2008, the court granted preliminary approval of an
agreement to settle the case. The company has agreed to make
cash payments totaling $670. KPMG has agreed to make cash
payments totaling $80.
The individual defendants and the company do not admit any
wrongdoing as a part of the settlement.
As required by Rule 23(e) of the Federal Rules of Civil
Procedure, the Court conducted a settlement fairness hearing on
Oct. 7, 2008. The court has not yet rendered a decision,
according to the company's Oct. 27, 2008 Form 10-Q Filing with
the U.S. Securities and Exchange Commission for the quarter
ended sept. 30, 2008.
The suit is "Carlson, et al. v. Xerox Corporation, et al., Case
No. 3:00-cv-01621-AWT," filed in the U.S. District Court for the
District of Connecticut, Judge Alvin W. Thompson, presiding.
Representing the plaintiffs are:
Francis P. Karam, Esq. (karam@bernlieb.com)
Bernstein Liebhard & Lifshitz, LLP
10 East 40th St.
New York, NY 10016
Phone: 212-779-1414
Fax: 212-779-3218
- and -
Eliot B. Gersten, Esq. (egersten@gcrlaw.net)
Gersten & Clifford
214 Main Street
Hartford, CT 06106
Phone: 860-527-7044
Fax: 860-527-4968
Representing the defendants are:
Michael Gruenglas, Esq.
Skadden, Arps, Slate, Meagher & Flom
Four Times Square
New York, NY 10036-3897
Phone: 212-735-3000
- and -
Timothy W. Blakely, Esq.
Cravath, Swaine & Moore
825 8th Ave., Worldwide Plaza
New York, NY 10019-7415
Phone: 212-474-1000
Fax: 212-474-3700.
XEROX CORP: Continues to Face "Digwamaje" Litigation in New York
----------------------------------------------------------------
Xerox Corp., along with several other companies are still facing
a purported class-action suit in New York entitled, "Digwamaje,
et al. v. IBM Corporation, et al., Case No. 1:02-cv-06218-JES,"
according to the company's Oct. 27, 2008 Form 10-Q Filing with
the U.S. Securities and Exchange Commission for the quarter
ended sept. 30, 2008.
The suit was originally filed in the U.S. District Court for the
Southern District of New York against Xerox Corp. and several
other corporations. It alleges that the defendants provided
material assistance to the apartheid government in South Africa
from 1948 to 1994, by engaging in commerce in South Africa and
with the South African government and by employing forced labor,
thereby violating both international and common law.
The plaintiffs claim violations of the Alien Tort Claims Act,
the Torture Victims Protection Act and Racketeer Influenced and
Corrupt Organizations Act. They also assert human rights
violations and crimes against humanity.
The suit seeks compensatory damages in excess of $200 billion
and punitive damages also in excess of $200 billion. The
foregoing damages are being sought from all defendants, jointly
and severally.
The company filed a motion to dismiss complaint (second
amendment). Oral argument on the motion was heard on Nov. 6,
2003.
By Memorandum Opinion and Order entered on Nov. 29, 2004, the
court granted the dismissal motion.
On Dec. 27, 2004, the company received a notice of appeal.
On Feb. 16, 2005, the parties filed a stipulation withdrawing
the appeal on the ground that the judgment of dismissal was not
appealable.
On March 28, 2005, the plaintiffs submitted a letter requesting
permission to file a motion for leave to file another amended
and consolidated complaint. The court subsequently denied this
request.
In a second summary order, the court amended its Nov. 29, 2004
Opinion and Order, which dismissed the action, so as to render
the Opinion and Order appealable. The plaintiffs filed a new
appeal on May 3, 2005.
On Aug. 19, 2005, the plaintiff-appellants filed their brief
before the U.S. Court of Appeals for the Second Circuit. On
Oct. 4, 2005, the defendant-appellees filed their brief in the
Second Circuit Court of Appeals. Oral argument in the Second
Circuit Court of Appeals was held on Jan. 24, 2006.
On Oct. 12, 2007, the U.S. Court of Appeals affirmed the
dismissal of the claims asserted under the Torture Victim
Protection Act, vacated the dismissal of the claims asserted
under the Alien Tort Claims Act, and remanded those claims to
the district court for further proceedings.
In January 2008, the defendant-appellees filed a petition for a
writ of certiorari with the U.S. Supreme Court, seeking review
of the Second Circuit's October 2007 opinion.
On May 12, 2008, the Supreme Court, lacking a quorum due to the
recusal of four justices, affirmed the decision of the Second
Circuit pursuant to 28 U.S.C. Section 2109.
That section requires the trial court to enter an order
affirming a Court of Appeals decision when a quorum is not
available to hear the case. The case proceeds in the District
Court. The plaintiffs must file their amended complaint by Oct.
27, 2008.
The suit is "Digwamaje, et al. v. IBM Corporation, et al., Case
No. 1:02-cv-06218-JES," filed in the U.S. District Court for the
Southern District of New York, Judge John E. Sprizzo, presiding.
Representing the plaintiffs are:
Kweku J. Hanson, Esq.
487 Main Street
Harford, CT 06106
Phone: 860-728-5454
Fax: 860-548-9660
Medi Moira Mokuena
268 Jubilee Avenue, Halfway House 1685
Extension 12
Republic of South Africa
- and -
Paul M. Ngobeni, Esq.
914 Main Street, Suite 206
East Hartford, CT 06108
Phone: 860-289-3155
508-620-4798.
Representing the defendants are:
Kristin M. Heine, Esq.
Drinker, Biddle & Reath, LLP
500 Campus Drive, Florham Park
NJ 07932-1047
Phone: 973-549-7338
Fax: 973-360-9831
Web site: http://www.drinkerbiddle.com/
- and -
Kristin Michele Heine, Esq. (kristin.heine@dbr.com)
Drinker, Biddle & Reath, LLP
140 Broadway, 39th Flr.
New York, NY 10005
Phone: 973-549-7338
Fax: 973-360-9831
XEROX CORP: Discovery Still Ongoing in Connecticut ERISA Lawsuit
----------------------------------------------------------------
Discovery is still ongoing in a consolidated lawsuit filed in
the U.S. District Court for the District of Connecticut that
accuses Xerox Corp. of violating the Employee Retirement Income
Security Act.
On July 1, 2002, a class-action complaint, captioned "Patti v.
Xerox Corp. et al.," was filed over alleged ERISA violations.
Three additional class action suits -- "Hopkins," "Uebele" and
"Saba" -- were subsequently filed before the same court
asserting substantially similar claims.
On Oct. 16, 2002, the four cases were consolidated as "In Re
Xerox Corp. ERISA Litigation." On Nov. 15, 2002, a consolidated
amended complaint was filed.
A fifth class action -- "Wright" -- was filed in the District of
Columbia. It has been transferred to Connecticut and
consolidated with the other actions.
The purported class includes all persons who invested or
maintained investments in the Xerox Stock Fund in the Xerox
401(k) Plans (either salaried or union) during the proposed
class period, May 12, 1997 through Nov. 15, 2002, and allegedly
exceeds 50,000 persons.
The named defendants include the company and these individuals
or groups of individuals:
-- Plan Administrator;
-- Board of Directors;
-- Fiduciary Investment Review Committee;
-- Joint Administrative Board;
-- Finance Committee of the Board of Directors; and
-- Treasurer.
The complaint claims that all the foregoing defendants were
fiduciaries of the Plan under ERISA and, as such, were obligated
to protect the Plan's assets and act in the interest of Plan
participants. The complaint alleges that the defendants failed
to do so and thereby breached their fiduciary duties.
Specifically, the plaintiffs claim that the defendants failed to
provide accurate and complete material information to
participants concerning company stock, including accounting
practices which allegedly artificially inflated the value of the
stock, and misled participants regarding the soundness of the
stock and the prudence of investing their retirement assets in
company stock.
The plaintiffs also claim that the defendants failed to invest
Plan assets prudently, to monitor the other fiduciaries and to
disregard Plan directives they knew or should have known were
imprudent, and failed to avoid conflicts of interest.
The complaint does not specify the amount of damages sought.
However, it asks that the losses to the Plan be restored, which
it describes as "millions of dollars."
It also seeks other legal and equitable relief, as appropriate,
to remedy the alleged breaches of fiduciary duty, as well as
interest, costs and attorneys' fees.
The company filed a motion to dismiss the complaint.
The plaintiffs subsequently filed a motion for class
certification and a motion to commence discovery. The
defendants have opposed these motions, contending that both are
premature before there is a decision on their motion to dismiss.
In the fall of 2004, the court requested an updated briefing on
the company's dismissal motion and update briefs were filed in
December that year.
On March 31, 2006, the court granted the company's motion to
postpone consideration of class certification pending
disposition of the dismissal motion, and granted the plaintiffs'
motion to commence formal discovery.
On April 17, 2007, the Court ruled on the dismissal motion,
granting it in part and denying it in part, and giving the
plaintiffs an opportunity to replead. In essence, the Court
stated that the class period does not extend past the date on
which the complaint was filed -- Nov. 15, 2002.
The Court also required the plaintiffs to plead with greater
specificity with regard to the defendants' alleged breach of
duties, and granted the motion with respect to the duty of
loyalty count, agreeing with defendants that ERISA does not
require fiduciaries to avoid conflicts of interest but rather
sets a loyalty standard to which fiduciaries must adhere when
faced with a conflict of interest. However, the Court did give
the plaintiffs leave to replead the duty of loyalty count.
Furthermore, the Court granted the plaintiffs' prayer for relief
seeking to enjoin the defendants from violating ERISA, holding
that an injunction must be more specific than a simple command
that the defendants obey the law.
The Court denied the motion as to the prudence count and the
monitoring count, ruling that further fact development is needed
as to those counts, and, on the disclosure count, determined
that plaintiffs have set forth a claim, rejecting the
defendants' assertion that SEC filings made by the company in
its corporate capacity and required by the federal securities
laws cannot be the basis of a fiduciary breach under ERISA even
if subsequently included in disclosures made directly to plan
participants.
Finally, the Court held that the plaintiffs are not precluded
from pursuing their claims under section 502(a)(2) merely
because any recovery will not be shared by all participants in
the plan but rather by a sub-class of participants who had
invested in Xerox stock during the class period.
Also on April 17, 2007, the Court denied the plaintiffs' motion
to certify a class and said that the subject needs to be
addressed in a scheduling conference that the Court will convene
in the future.
The plaintiffs subsequently filed a second consolidated amended
complaint, alleging that some or all the defendants breached
their ERISA fiduciary duties during 1997-2002 by:
-- maintaining the Xerox Stock Fund as an investment
option under the Plan;
-- failing to monitor the conduct of Plan fiduciaries;
and
-- misleading Plan participants about Xerox stock as an
investment option under the Plans.
On July 18, 2007, the defendants answered the new complaint and
also filed a partial motion to dismiss.
On Aug. 9, 2007, the plaintiffs filed their motion for class
certification and on Aug. 31, 2007, filed their opposition to
the defendants' partial motion to dismiss.
In March 2008, the Court denied the plaintiffs' motion for class
certification, without prejudice against re-filing, and also
denied most of the defendants' partial motion to dismiss.
On July 1, 2008, the plaintiffs refiled their class
certification motion and also filed a Third Consolidated Amended
Complaint. The defendants filed their answer to the latest
complaint on July 15, 2008 and their opposition to class
certification on Sept. 5, 2008. Discovery in the case is
ongoing, according to the company's Oct. 27, 2008 Form 10-Q
Filing with the U.S. Securities and Exchange Commission for the
quarter ended sept. 30, 2008.
The suit is "In Re Xerox Corp. ERISA Litigation, Case No. 3:02-
cv-01138-AWT," filed in the U.S. District Court for the District
of Connecticut, Judge Alvin W. Thompson, presiding.
Representing the plaintiffs are:
Gary A. Gotto, Esq. (ggotto@kellerrohrback.com)
Keller Rohrback
3101 North Central Avenue, Suite 900
Phoenix, Arizona 85012-2600
Phone: 602-230-6322
Fax: 602-248-2822
- and -
Charles R. Watkins, Esq. (chuckwatkins@ameritech.net)
Susman & Watkins
Two First National Plaza, Suite 600,
Chicago, IL 60603
Phone: 312-346-3466
Fax: 312-346-2829
Representing the defendants are:
William H. Boice, Esq. (bboice@kilpatrickstockton.com)
Kilpatrick Stockton
1100 Peachtree St., Ste. 2800
Atlanta, GA 30309-4530
Phone: 404-815-6464
Fax: 404-541-3134
- and -
William J. Egan, Esq. (wegan@brownraysman.com)
Brown Raysman Millstein Felder & Steiner
City Place II, 185 Asylum Street, 10th Floor
Hartford, CT 06103
Phone: 860-275-6400
Fax: 860-275-6410
XEROX CORP: N.Y. Court Approves Civil Rights Lawsuit Settlement
---------------------------------------------------------------
The U.S. District Court for the Eastern District of New York
gave final approval to the proposed settlement in the matter
captioned, "Warren, et al. v. Xerox Corp.," according to the
company's Oct. 27, 2008 Form 10-Q Filing with the U.S.
Securities and Exchange Commission for the quarter ended sept.
30, 2008.
The suit, filed in May 2001, alleged race discrimination with
respect to sales territory assignments, quotas and compensation.
On March 11, 2004, the Court entered an order certifying a
nationwide class of all black salespersons employed by Xerox
from Feb. 1, 1997, to the present under Title VII of the Civil
Rights Act of 1964, as amended, and the Civil Rights Act of
1871. Six black sales representatives commenced the suit on May
9, 2001.
The plaintiffs allege that the company engaged in a pattern or
practice of race discrimination against them and other black
sales representatives by assigning them to less desirable sales
territories, denying them promotional opportunities, and paying
them less than their white counterparts.
Although the complaint does not specify the amount of damages
sought, the plaintiffs seek, on behalf of themselves and the
classes they seek to represent, front and back pay, compensatory
and punitive damages, and attorneys' fees.
A tentative settlement agreement was eventually reached, the
terms of which are not material to Xerox, and in 2007, the
parties submitted the settlement agreement to the Court for
preliminary approval.
At a status conference held on June 6, 2007, the judge indicated
that he would not approve the current version of the settlement
agreement. He said he was concerned that the named plaintiffs
may be receiving a disproportionate amount of damages as
compared to the other class members. He directed the parties to
revise this aspect of the agreement and bring it back to him.
A revised agreement was submitted to the Court on March 7, 2008,
and the Court approved it on a preliminary basis, without
hearing, on April 3, 2008.
Notice of the preliminary approval was mailed to class members
on May 9, 2008, and a final fairness hearing was held on July
11, 2008.
On Sept. 22, 2008, an Order and Judgment of Final Approval of
the Settlement was entered. Following entry of this Judgment,
the named plaintiffs filed a motion for reconsideration with
respect to the amount of incentive awards granted to them. This
motion was denied by the Court, and the named plaintiffs are
contemplating filing an appeal from this portion of the
Judgment.
The suit is "Warren, et al. v. Xerox Corp., Case No. 1:01-cv-
02909-JG-KAM," filed in the U.S. District Court for the Eastern
District of New York, Judge John Gleeson, presiding.
Representing the plaintiffs is:
Barry Alan Weprin, Esq. (bweprin@milbergweiss.com)
Milberg, Weiss, Bershad, Hynes & Schulman, LLP
One Pennsylvania Plaza, 48th floor
New York, NY 10119-0165
Phone: 212-946-9312
Fax: 212-868-1229
Representing the defendant are:
Eugene D. Ulterino, Esq. (eulterino@nixonpeabody.com)
Amy Laura Ventry, Esq. (aventry@nixonpeabody.com)
Nixon Peabody, LLP
Phone: 585-263-1580
516-832-7500
Fax: 585-263-1600
516-832-7555
New Securities Fraud Cases
CANO PETROLEUM: Izard Nobel Announces Securities Suit Filing
------------------------------------------------------------
HARTFORD, CT, Oct. 28, 2008 -- The law firm of Izard Nobel
LLP, which has significant experience representing investors in
prosecuting claims of securities fraud, announced that a lawsuit
seeking class action status has been filed in the United States
District Court for the Southern District of New York on behalf
of those who purchased the common stock of Cano Petroleum, Inc.
pursuant to a Registration Statement and Prospectus
("Prospectus") issued in connection with Cano's Secondary
Offering on June 26, 2008.
The Complaint charges that certain officers, directors and
underwriters of Cano violated federal securities laws.
Specifically, the Prospectus filed with the SEC for the
Cano shares issued in the Secondary Offering contained
materially false and misleading statements concerning Cano's
proved reserve amounts.
Interested parties may move the court no later than
December 8, 2008 for lead plaintiff appointment.
For more information, contact:
Nancy A. Kulesa
Wayne T. Boulton
Izard Nobel LLP
20 Church Street, Suite 1700
Hartford, CT 06103
Tel.: (800) 797-5499
Website: http://www.izardnobel.com
MEDICIS PHARMACEUTICAL: Pomerantz Files Securities Fraud Suit
-------------------------------------------------------------
NEW YORK, Oct. 28, 2008 - Pomerantz Haudek Block Grossman &
Gross LLP filed a class action lawsuit in the United States
District Court, District of Arizona, against Medicis
Pharmaceutical Corporation and certain officers of the company.
The class action was filed on behalf of purchasers of the
common stock of the Company during the period from October 30,
2003 to September 23, 2008, both dates inclusive.
The complaint alleges violations of Sections 10(b) and
20(a) of the Exchange Act and Rule 10b-5 promulgated there
under.
Medicis develops and markets products for the treatment of
dermatological, aesthetic, and podiatric conditions.
The complaint alleges that during the class period,
defendants issued materially false and misleading statements
regarding the Company's business and financial results.
Specifically, defendants overstated the Company's revenues and
earnings by failing to properly account for returns in
accordance with Generally Accepted Accounting Principles
("GAAP").
The complaint specifically alleges that on September 24,
2008, the Company announced that its Audit Committee concluded
that the Company's financial statements for fiscal years 2003
through 2007 and the first and second quarters of 2008 would
need to be restated due to improper return reserve calculations.
Medicis admitted that it had improperly "accrued returns at
replacement cost rather than deferring the gross sales price"
and that it would have to revise "its reserve calculations to
defer the gross sales value of the returned product."
On this news, Medicis' stock dropped $2.34 per share to
close at $15.58 per share, a one-day decline of 13%. As a result
of the challenged statements, Medicis' common stock traded at
artificially inflated prices throughout the Class Period,
resulting in damage to class members who had purchased at prices
inflated by defendants' materially false and misleading
statements.
Interested parties may move the court no later than
December 2, 2008 for lead plaintiff appointment.
For more information, contact:
Teresa Webb
Pomerantz Haudek Block Grossman & Gross LLP
100 Park Avenue
New York, NY 10017-5516
Phone: (888) 476.6529 or (888) 4.POMLAW
e-mail: tlwebb@pomlaw.com
NEXTWAVE WIRELESS: Brower Piven Announces Suit Filing in Calif.
---------------------------------------------------------------
BALTIMORE, MD, Oct. 28, 2008 -- Brower Piven, A
Professional Corporation announced that a class action lawsuit
has been commenced in the United States District Court for the
Southern District of California on behalf of purchasers of the
common stock of NextWave Wireless Inc. during the period between
November 27, 2006 and August 7, 2008, inclusive.
The complaint charges NextWave and certain of its officers
and directors with violations under the Securities Exchange Act
of 1934.
The complaint alleges that during the Class Period,
defendants issued materially false and misleading statements
regarding the Company's business and financial results.
According to the complaint, the defendants concealed from
the investing public during the Class Period:
-- that NextWave did not have adequate sources of liquidity
to continue operations as it executed its growth
strategy and continued making aggressive worldwide
acquisitions;
-- that defendants had no reasonable basis to make
favorable statements that the Company's WiMAX
semiconductor products would be available for commercial
sale in the first half of 2008;
-- that NextWave did not have the financial resources to
continue to operate its world-wide operations through
the end of 2008;
-- that the Company had invested all of its marketable
securities in extremely high-risk and illiquid auction
rate securities; and
-- that the Company's ability to continue as a going
concern was seriously in question.
The complaint further alleges that on August 7, 2008,
NextWave announced it only had $71.1 million in cash and similar
instruments available as of June 30, 2008 that would last only
until the beginning of October 2008. As a result of the
foregoing announcement, the value of the Company's shares
declined significantly.
Interested parties may move the court no later than
November 17, 2008 for lead plaintiff appointment.
For more information, contact:
Charles J. Piven
Brower Piven, A Professional Corporation
The World Trade Center-Baltimore
401 East Pratt Street, Suite 2525
Baltimore, Maryland 21202
Phone: 410/332-0030
email: hoffman@browerpiven.com
Web site: http://www.browerpiven.com
OSHKOSH CORP: Brower Piven Announces Securities Suit Filing
-----------------------------------------------------------
BALTIMORE, MD, Oct. 28, 2008 -- Brower Piven, A
Professional Corporation announced that a class action lawsuit
has been commenced in the United States District Court for the
Easter District of Wisconsin on behalf of purchasers of the
common stock of Oshkosh Corporation during the period between
February 2, 2007 and June 25, 2008, inclusive.
The complaint charges Oshkosh and certain of its officers
and directors with violations under the Securities Exchange Act
of 1934.
The complaint alleges that, during the Class Period,
defendants materially misled the investing public, thereby
inflating the price of Oshkosh's common stock, by publicly
issuing materially false and misleading statements and omitting
to disclose material facts necessary to make defendants'
statements not false and misleading.
As alleged in the complaint, the Company failed to disclose
during the Class Period that synergies related to Oshkosh's
European facility rationalization program for its refuse
business, the Geesink Norba Group, were lower and the cost of
such rationalization was higher than represented; that the value
of Oshkosh's European refuse business was overstated and should
have been written down; that Oshkosh's JLG access-equipment
division was experiencing a dramatic decrease in demand; and
that Oshkosh lacked any reasonable basis to maintain its
financial guidance for fiscal 2008.
The complaint further alleges that on June 26, 2008,
Oshkosh announced that it was revising downwards estimates for
its third quarter and full fiscal 2008 financial results after
which announcement the value of the Company's shares declined
significantly.
For more information, contact:
Charles J. Piven
Brower Piven, A Professional Corporation
The World Trade Center-Baltimore
401 East Pratt Street, Suite 2525
Baltimore, Maryland 21202
Phone: 410/332-0030
email: hoffman@browerpiven.com
Web site: http://www.browerpiven.com
THORNBURG MORTGAGE: Glancy Binkow Files N.M. Securities Suit
------------------------------------------------------------
LOS ANGELES, Oct. 28, 2008 -- Glancy Binkow & Goldberg LLP
filed a Class Action lawsuit in the United States District
Court for the District of New Mexico on behalf of a class
consisting of all those persons who tendered shares of Thornburg
Series C, D, E or F Preferred Stock of Thornburg Mortgage, Inc.
(NYSE: TMA; TMA-PC; TMA-PD; TMA-PE; TMA-PF) pursuant to the
Tender Offer originally launched on July 23, 2008, and the
definitive proxy statement filed with the Securities and
Exchange Commission and disseminated to shareholders that same
day (the "Proxy").
The Complaint charges Thornburg, the Company's Board of
Directors (the "Board"), MP TMAC LLC, MP TMA (Cayman) LLC, and
MatlinPatterson LLC (d/b/a "MatlinPatterson Global Advisers
LLC")(collectively, "MatlinPatterson"), with violations of
federal securities laws.
Thornburg Mortgage, Inc. operates as a residential mortgage
lending company, which originates, acquires and retains
investments in adjustable and variable rate mortgage (ARM)
assets.
The Complaint alleges, among other things, that the Proxy
fails to provide shareholders with the following material
information:
(a) any projections, estimates and/or information
concerning Thornburg's future business and financial
prospects which would allow shareholders to make an
informed decision as to whether to tender their shares
in the Tender Offer;
(b) any projections, estimates and/or information which
would allow shareholders to evaluate any strategic
alternative to the Tender Offer;
(c) any projections or estimates which would allow
shareholders to evaluate the impact of a potential
bankruptcy on the Company and its preferred
shareholders who have the right to a $25.00 per share
liquidation preference;
(d) any information regarding the viability of any
strategic alternatives which the Board considered
and/or information relied upon relating to those
alternatives;
(e) any information concerning the potential or actual
conflicts between and among members of the Board,
Thornburg and MatlinPatterson and the other parties to
an agreement with MatlinPatterson, pursuant to which
MatlinPatterson would lend Thornburg approximately
$1.35 billion at an initial interest rate of 18% per
annum (the "Agreement"); and
(f) any information, analysis, valuation, projections
and/or estimates prepared by, or opinion rendered by,
any financial advisor at the behest of the Board
concerning the Tender Offer, the Agreement, or any
strategic alternative considered by the Board.
The Complaint further alleges that the Thornburg Board has
placed its own self-interest above those of Thornburg's
shareholders by:
(a) agreeing to sell 90% of the Company to MatlinPatterson
in return for grossly inadequate consideration in the
form of a risk-free loan of approximately $1.3 billion;
and
(b) launching a coercive tender offer aimed at eliminating
the Company's preferred shareholders, simultaneously
diluting and devaluing the common shares held by public
shareholders.
Plaintiff seeks to recover damages on behalf of Class
members.
For more information, contact:
Michael Goldberg, Esq.
Glancy Binkow & Goldberg LLP
1801 Avenue of the Stars, Suite 311
Los Angeles, California 90067
Phone: (310) 201-9150
Toll Free: (888) 773-9224
e-mail: info@glancylaw.com
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent research,
collectively face billions of dollars in asbestos-related
liabilities.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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USA. Glenn Ruel S. Senorin, Janice M. Mendoza, Freya Natasha F.
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Copyright 2008. All rights reserved. ISSN 1525-2272.
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