/raid1/www/Hosts/bankrupt/CAR_Public/081204.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, December 4, 2008, Vol. 10, No. 241
Headlines
BELO CORP: Plaintiffs Appeal Dismissal of Tex. Securities Suit
BODISEN BIOTECH: N.Y. Grants Motion to Dismiss in N.Y. Lawsuit
BROOKLINE BANK: Mass. Collateral Sale Notices Lawsuit Continues
CANADIAN PACIFIC: Continues to Face Pollution Suit in Alberta
CUTERA INC: Continues to Face TCPA Violations Suit in Illinois
CUTERA INC: Plaintiffs in Calif. Securities Lawsuit Files Notice
CYPRESS GARDENS: Ex-Employees File Fla. Suit for Pay, Benefits
FARO TECHNOLOGIES: Fla. Court Approves $6.87M Suit Settlement
GLOBAL ENERGY: Xethanol Securities Lawsuit Dismissed on Oct. 6
LEHMAN BROTHERS: Amended Complaint Filed in Suit v. Underwriters
MEDICAL INFORMATION: Mass. Court Still to Certify "Hubert" Suit
NVR INC: Faces Multiple Overtime Wage Suits in Various States
ORPHAN MEDICAL: Eight Circuit Affrims Dismissal of "Little Gem"
OSHKOSH CORP: Faces Multiple Securities Fraud Lawsuits in Wis.
TRAVELERS CASUALTY: Appeals Order in Coy Chiropractic Litigation
VESTIN REALTY: March Trial Set for Vestin Fund I Merger Lawsuit
VESTIN REALTY: March Trial Set for Vestin Fund II Merger Lawsuit
WESTERN UNION: Faces Lawsuit in Mich. Alleging FACTA Violations
YTB INT'L: Ill. Court Sets Dec. 8 Status Conference for Lawsuits
New Securities Fraud Cases
SOUTHWEST WATER: Barroway Topaz Announces Securities Suit Filing
*********
BELO CORP: Plaintiffs Appeal Dismissal of Tex. Securities Suit
--------------------------------------------------------------
The plaintiffs in a purported class-action lawsuit filed gaianst
Belo Corp. are appealing a decision by the U.S. District Court
for the Northern District of Texas that dismisses the case.
On Aug. 23, 2004, Aug. 26, 2004, and Oct. 5, 2004, respectively,
three related lawsuits, now consolidated, were filed by
purported shareholders of the Company in the U.S. District Court
for the Northern District of Texas against the Company, Robert
W. Decherd and Barry T. Peckham, a former executive officer of
The Dallas Morning News. James M. Moroney III, an executive
officer of The Dallas Morning News, was later added as a
defendant.
The complaints arise out of the circulation overstatement at The
Dallas Morning News announced by the Company in 2004, alleging
that the overstatement artificially inflated Belo's financial
results and thereby injured investors.
The plaintiffs seek to represent a purported class of
shareholders who purchased Belo common stock between May 12,
2003 and Aug. 6, 2004 and allege violations of Sections 10(b)
and 20(a) of the U.S. Securities Exchange Act of 1934.
On April 2, 2008, the court denied plaintiffs' motion for class
certification. On April 16, 2008, plaintiffs filed a petition
with the U.S. Court of Appeals for the Fifth Circuit seeking
permission to appeal that denial.
On June 17, 2008, permission was granted, and plaintiffs are
appealing the denial of class certification, according to the
company's Nov. 3, 2008 Form 10-Q Filing with the U.S. Securities
and Exchange Commission for the quarter ended Sept. 30, 2008.
BODISEN BIOTECH: N.Y. Grants Motion to Dismiss in N.Y. Lawsuit
--------------------------------------------------------------
The U.S. District Court for the Southern District of New York
granted Bodisen Biotech, Inc.'s initial motion to dismiss in
relation to a consolidated class-action lawsuit filed against it
and its management, according to its Nov. 14, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended Sept. 30, 2008.
In late 2006, various shareholders of the company filed eight
purported class actions in the U.S. District Court for the
Southern District of New York against the company and certain of
its officers and directors, asserting claims under the federal
securities laws.
The complaints contain general and non-specific allegations
about prior financial disclosures and the company's internal
controls and a prior, now-terminated relationship with New York
Global Group.
The eight actions are:
1. "Stephanie Tabor v. Bodisen, Inc., et al., Case No.
06-13220 (filed November 2006),"
2. "Fraser Laschinger vs. Bodisen, Inc., et al., Case No.
06-13254 (filed November 2006),"
3. "Anthony DeSantis vs. Bodisen, Inc., et al., Case No.
06-13454 (filed November 2006),"
4. "Yuchen Zhou vs. Bodisen, Inc., et. al., Case No. 06-
13567 (filed November 2006),"
5. "William E. Cowley vs. Bodisen, Inc., et al., Case No.
06-13739 (filed December 2006),"
6. "Ronald Stubblefield vs. Bodisen, Inc., et al., Case
No. 06-14449 (filed December 2006),"
7. "Adam Cohen vs. Bodisen, Inc., et. al., Case No. 06-
15179 (filed December 2006)," and
8. "Lawrence M. Cohen vs. Bodisen, Inc., et. al., Case No.
06-15399 (filed December 2006)."
The plaintiffs have not specified an amount of damages they
seek. In 2007, the Court consolidated each of the actions into
a single proceeding.
In October 2008, the New York Federal Court presiding over the
eight consolidated class-action lawsuits against Bodisen and its
management granted the Company's initial motion to dismiss the
cases.
In addition, the court has notified Bodisen that it also granted
the Company's second motion to dismiss, which challenged the
subject matter jurisdiction of the court over about 40% of the
class and thus sought to reduce the number of potential class
plaintiffs significantly.
The suit is "Tabor v. Bodisen Biotech, Inc., et al., Case No.
1:06-cv-13220-VM," filed with the U.S. District Court for the
Southern District of New York, Judge Victor Marrero presiding.
Representing the plaintiffs is:
Phillip Kim, Esq. (pkim@rosenlegal.com)
The Rosen Law Firm, PA
Phone: 1-866-767-3653
Fax: (212) 202-3827
Web site: http://www.rosenlegal.com
Representing the defendants is:
Judd Burstein, Esq. (jburstein@burlaw.com)
Burstein & McPherson, L.L.P.
1790 Broadway
New York, NY 10019
Phone: (212) 974-2400
Fax: 212-974-2944
BROOKLINE BANK: Mass. Collateral Sale Notices Lawsuit Continues
---------------------------------------------------------------
Brookline Bank, a wholly owned subsidiary of Brookline Bancorp,
Inc., continues to face a purported class-action lawsuit over
missing information in its notice of sale of collateral for
delinquent loans.
On Feb. 28, 2007, the company received a complaint against it
filed in the Superior Court for the Commonwealth of
Massachusetts by Carrie E. Mosca, Esq. (Class Action Reporter,
May 9, 2008).
Ms. Mosca defaulted on a loan obligation on an automobile that
she co-owned. She alleges that the form of notice of sale of
collateral that the bank sent to her after she and the co-owner
became delinquent on the loan obligation did not contain
information required to be provided to a consumer under the
Massachusetts Uniform Commercial Code.
The action purports to be brought on behalf of a class of
individuals to whom the bank sent the same form of notice in
connection with transactions documented as consumer transactions
during the four-year period prior to the filing of the action.
The suit seeks statutory damages, an order restraining the bank
from future use of the form of notice sent to Ms. Mosca, an
order barring the bank from recovering any deficiency from other
individuals to whom it sent the same form of notice and
attorneys' fees and costs.
The bank denied liability and has opposed the plaintiff's motion
to certify a class. The Court denied the plaintiff's motion for
class certification in an order dated July 18, 2008.
The plaintiff has moved for summary judgment seeking an award of
statutory damages in the amount of $2,928 to her individually.
The Bank has opposed that motion and oral argument is scheduled
to be heard on Nov. 18, 2008, according to the company's Nov. 3,
2008 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30, 2008.
Brookline Bancorp, Inc. -- https://www.brooklinebank.com/ -- is
a state-chartered savings and loan holding company and the
parent of Brookline Bank.
CANADIAN PACIFIC: Continues to Face Pollution Suit in Alberta
-------------------------------------------------------------
Canadian Pacific Railway is still facing a purported class-
action lawsuit in connection to a chemical found in some Ogden
homes, which allegedly reduced property values, Kim Guttormson
of the Calgary Herald reports.
The litigation was filed by David and Agnes Windsor. They
brought the action for dimunition in property values and losses
of rental income allegedly caused by the presence of
Trichloroethylene (TCE) in the groundwater flowing underneath a
portion of the community of Ogden in southeast Calgary, Alberta.
TCE is a known cancer-causing agent (Class Action Reporter, Oct.
2, 2007).
The class action and Notice of Motion for certification were
filed on Jan. 6, 2005 on behalf of all person or corporations
that own or did own land on or after Jan. 7, 2003, within the
affected area of Ogden, in the City of Calgary, in the Province
of Alberta. It is based on negligence, nuisance, trespass and
strict liability.
Premised on the contention that escaped TCE polluted lands owned
by the class members and posed a significant health risk to
people, the plaintiffs claim that the the company is liable to
them for resulting damage to their property and corresponding
reduction in property values and loss of rental income.
The proposed class consisted of: "all persons or corporations
that own or did own land on or after Jan. 7, 2003, within the
affected area of Ogden, in the city of Calgary, in the Province
of Alberta, described as within the boundaries of 72nd Avenue SE
(as the north boundary of the area), to the CPR's property line
adjacent to Ogden Road SE (as the east boundary of the area), to
76 Avenue SE (as the south boundary), to 20th Street SE going
north to the base of what is known as Lynwood Ridge SE (as the
west boundary - 20th Street SE to 74 Avenue SE to 72 Avenue
SE)."
The residents are claiming several million dollars for
diminution in property values.
The suit is "Windsor v. Canadian Pacific Railway Ltd., 2007 ABCA
294."
For more information, contact:
Docken & Company
900, 800 - 6th Avenue S.W.
Calgary, Alberta, T2P 3G3
Telephone: (403) 269-3612
Toll Free: (877) 269-3612
Website: http://www.docken.com
CUTERA INC: Continues to Face TCPA Violations Suit in Illinois
--------------------------------------------------------------
Cutera, Inc., continues to face a purported class-action lawsuit
filed before the U.S. District Court for the Northern District
of Illinois, alleging violations of the Telephone Consumer
Protection Act.
Originally, the suit was filed against the company in January
2008 in the Illinois Circuit Court, Cook County, by Bridgeport
Pain Control Center, LTD. It seeks monetary damages, injunctive
relief, costs and other relief.
The complaint alleges that the company violated the TCPA by
sending unsolicited advertisements by facsimile to the
plaintiffs and other recipients without the prior express
invitation or permission of the recipients.
Under the TCPA, the recipients of unsolicited facsimile
advertisements may be entitled to damages of $500 per violation
for inadvertent violations and $1,500 per violation for knowing
or willful violations.
On Feb. 22, 2008, the company removed the case to the U.S
District Court for the Northern District of Illinois, and then
filed its response to the complaint on Feb. 29, 2008.
The company reported no development in the matter in its Nov. 3,
2008 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30, 2008.
The suit is "Bridgeport Pain Control Center, Ltd. Vs. Cutera,
Inc., et al., Case No. 1:08-cv-01116," filed in the U.S District
Court for the Northern District of Illinois, Judge William J.
Hibbler, presiding.
Representing the plaintiffs is:
Cathleen M. Combs, Esq. (ccombs@edcombs.com)
Edelman, Combs, Latturner & Goodwin, LLC
120 South LaSalle Street, 18th Floor
Chicago, IL 60603
Phone: 312-739-4200
Representing the defendants is:
Eric Stephen Mattson, Esq. (emattson@sidley.com)
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
Phone: 312-853-7000
CUTERA INC: Plaintiffs in Calif. Securities Lawsuit Files Notice
----------------------------------------------------------------
The plaintiffs in the consolidated litigation, styled, "Doug
Hamilton, et al. v. Cutera, Inc., et al., Case No. 07-CV-02128,"
have filed a Notice Of Intention Not to File A Second Amended
Consolidated Complaint.
The U.S. District Court for the Northern District of California
has yet to rule on a motion that sought the dismissal of a
consolidated securities fraud class-action suit against Cutera,
Inc., and two of its executive officers.
Initially, two lawsuits were filed in April 2007 and May 2007,
respectively. They were filed following declines in the
company's stock price. The plaintiffs claim to represent
purchasers of the company's common stock from Jan. 31, 2007,
through May 7, 2007.
The complaints generally allege that materially false statements
and omissions were made regarding the company's financial
prospects, and seek unspecified monetary damages.
On Nov. 1, 2007, the Court consolidated the two cases and gave
the plaintiffs until Dec. 17, 2007, to file a consolidated,
amended complaint.
On Jan. 31, 2008, the company filed a motion to dismiss the
plaintiffs' complaint.
On Sept. 30, 2008, in response to the company's motion, the
Court issued an order dismissing the plaintiffs' amended
complaint without prejudice, and allowed the plaintiffs thirty
days to file a second amended complaint.
On Oct. 28, 2008, the plaintiffs filed a Notice Of Intention Not
to File A Second Amended Consolidated Complaint, according to
the company's Nov. 3, 2008 Form 10-Q Filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept.
30, 2008.
The suit is "Doug Hamilton, et al. v. Cutera, Inc., et al., Case
No. 07-CV-02128," filed in the U.S. District Court for the
Northern District of California, Judge Vaughn R. Walker,
presiding.
Representing the plaintiffs is:
Mark Irving Labaton, Esq. (mlabaton@kreindler.com)
Kreindler & Kreindler LLP
707 Wilshire Blvd, Ste 4100
Los Angeles, CA 90017
Phone: 213-622-6469
Fax: 213-622-6019
Representing the defendants is:
Timothy Tully Scott, Esq. (tscott@kslaw.com)
King & Spalding LLP
1000 Bridge Parkway, Suite 100
Redwood Shores, CA 94065
Phone: 650-590-0739
Fax: 650-590-1900
CYPRESS GARDENS: Ex-Employees File Fla. Suit for Pay, Benefits
--------------------------------------------------------------
Cypress Gardens, Florida's first theme park, which opened in
1936, is facing a purported class-action lawsuit by former
employees who are seeking back pay and benefits, claiming that
they were not given required notice of the amusement park
closing its ride and animal attractions, Jason Geary of The
Ledger reports.
The suit was filed in the U.S. District Court for the Middle
District of Florida on Dec. 2, 2008 under the caption, "Pearson
et al v. Land South Adventures, LLC, Case No. 8:08-cv-02395-SCB-
TBM." It claims employees should have been given at least 60
days' notice before the closings, but were given only eight
days' notice.
The Ledger reported that in early November, officials for the
Winter Haven park announced plans to temporarily close until
March 2009 and eliminate its animal exhibits and 38 rides. The
plans also call for expanding the water park as well as keeping
the botanical gardens and ski shows.
The suit claims that employees should have been given at least
60 days' written notice of the closings. It states, "As a
result of the permanent closure of the animal and rides
facilities/operating units, more than fifty employees were
constructively discharged with no hope of being re-employed
within six months. These employees were not given but eight
days notice of the plant closing," reports The Ledger.
Attorneys Bernard R. Mazaheri, Esq. and W. John Gadd, Esq. Are
representing the plaintiffs -- Daniel Pearson and Barbra Walker,
who worked in the park's rides facility. Nine other former
employees have signed affidavits to take part in the lawsuit,
according to The Ledger.
The suit is "Pearson et al v. Land South Adventures, LLC, Case
No. 8:08-cv-02395-SCB-TBM," filed in the U.S. District Court for
the Middle District of Florida, Judge Susan C. Bucklew,
presiding.
Representing the plaintiffs are:
Bernard R. Mazaheri, Esq. (brm@mazgadd.com)
Mazaheri Gadd, PA
Suite 210
2727 Ulmerton Road
Clearwater, FL 33762
Phone: 727/524-6300
Fax: 727/524-6330
FARO TECHNOLOGIES: Fla. Court Approves $6.87M Suit Settlement
-------------------------------------------------------------
The U.S. District Court for the Middle District Court of Florida
gave final approval to the $6,875,000 settlement in a
consolidated securities fraud class-action lawsuit against FARO
Technologies, Inc.
On Dec. 6, 2005, the first of four essentially identical class
action securities fraud lawsuits was filed against the company
and certain of its officers.
On April 19, 2006, the four lawsuits were consolidated, and
Kornitzer Capital Management, Inc., was appointed as lead
plaintiff.
On May 16, 2006, Kornitzer filed its consolidated amended class
action complaint against the company and the individual
defendants.
The Amended Complaint also named Grant Thornton LLP, the
company's independent registered public accounting firm, as an
additional defendant.
On July 31, 2006, the company filed a motion to dismiss the
Amended Complaint, which request the court granted on Feb. 3,
2007, without prejudice.
As to the company and the individual defendants, the Court's
decision primarily was based on its findings that the Amended
Complaint failed to adequately allege:
-- scienter (i.e., intentionally fraudulent or severely
reckless conduct) with respect to certain claims; and
-- that certain supposed misrepresentations or omissions
actually caused economic loss.
The Court granted Kornitzer leave to file a Second Amended
Complaint by Feb. 22, 2007.
On Feb. 22, 2007, Kornitzer filed its consolidated second
amended class action complaint against the company, the
individual defendants and Grant Thornton LLP.
In the Second Amended Complaint, as in the Amended Complaint,
Kornitzer seeks to represent a class consisting of all persons
who purchased or otherwise acquired the Company's publicly
traded securities between April 15, 2004, and March 15, 2006.
On behalf of the alleged class, Kornitzer seeks an unspecified
amount of damages, premised on allegations that each defendant
made misrepresentations and omissions of material fact during
the class period in violation of the U.S. Securities Exchange
Act of 1934.
Among other things, Kornitzer alleges:
-- that the company's reported inventory, gross margins
and profits were false and misleading during a portion
of the class period because the company consciously
overstated the value of its inventory;
-- that the company misstated during 2005 certain of the
selling expenses it had accrued and had expected to
incur;
-- that certain Asian sales that the company had reported
during the class period had been the product of
unlawful payments made in violation of the Foreign
Corrupt Practices Act, and that the company failed to
disclose that it was utilizing unlawful means to
achieve such sales; and
-- that certain of the company's statements regarding the
company's systems of internal controls had been false
and misleading.
On Feb. 26, 2008, the parties to the securities litigation
entered into a Memorandum of Understanding stating the principal
terms of an agreement to settle the Securities Litigation (Class
Action Reporter, April 15, 2008).
On April 9, 2008, the parties filed a detailed Stipulation of
Settlement with the court seeking the court's preliminary and
final approval of the terms of the proposed settlement.
Pursuant to those terms, the issuer of the Company's Executive
Liability and Entity Securities Liability insurance policy
applicable to the Securities Litigation will pay $6.875 million
into a settlement fund for the Securities Litigation. That sum
is within the coverage limit of the policy and accordingly has
no effect on the Company's financial results.
On Oct. 3, 2008, the court entered a Final Judgment and Order of
Dismissal With Prejudice, whereby the court certified the Class
for purposes of the settlement, approved the settlement, and
dismissed the Securities Litigation, with prejudice, as against
each defendant, according to the company's Nov. 3, 2008 Form 10-
Q Filing with the U.S. Securities and Exchange Commission for
the quarter ended Sept. 27, 2008.
The suit is "Goldberger v. Faro Technologies, Inc. et al., Case
No. 6:05-cv-01810-ACC-DAB," filed in the U.S. District Court
for the Middle District Court of Florida, Judge Anne C. Conway
presiding.
Representing the plaintiffs are:
John F. Edgar, Esq. (jfe@edgarlawfirm.com)
Edgar Law Firm, LLC
4520 Main St., Suite 1650
Kansas City, MO 64111
Phone: 816-531-0033
Fax: 816-531-3322
- and -
Patrick A. Klingman, Esq. (pklingman@sfmslaw.com)
Karen M. Leser, Esq. (kleser@sfmslaw.com)
James E. Miller, Esq. (jmiller@sfmslaw.com)
James C. Shah, Esq. (jshah@classactioncounsel.com)
Nathan Zipperian, Esq.
(nzipperian@classactioncounsel.com)
Scott R. Shepherd, Esq.
(sshepherd@classactioncounsel.com)
Shepherd, Finkelman, Miller & Shah, LLC
Phone: 860-526-1100
610-891-9880
954-943-9191
Fax: 860-526-1120
610-891-9883
954-943-9173
Representing the defendants are:
Richard S. Davis, Esq. (rdavis@foley.com)
Robert A. Scher, Esq. (rscher@foley.com)
Foley & Lardner, LLP
Phone: 407-244-3260
212-682-7474
Fax: 407-648-1743
212-687-2329
- and -
Daniel A. Casey, Esq. (dcasey@klng.com)
Jeffrey T. Kucera Esq. (jkucera@kl.com)
Kirkpatrick & Lockhart Nicholson Graham, LLP
201 S. Biscayne Blvd., Suite 2000
Miami, FL 33131-2399
Phone: 305-539-3324
305-539-3322
Fax: 305-358-7095
GLOBAL ENERGY: Xethanol Securities Lawsuit Dismissed on Oct. 6
--------------------------------------------------------------
The U.S. District Court for the Southern District of New York,
on Oct. 6, 2008, dismissed with prejudice the class-action suit,
"In re Xethanol Corporation Securities Litigation, 06 Civ. 10234
(HB) (S.D.N.Y.)," which was filed against Global Energy Holdings
Group, Inc., formerly Xethanol Corporation,, according to the
company's Nov. 14, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period
ended Sept. 30, 2008.
In October 2006, a shareholder class-action complaint was filed
in the U.S. District Court for the Southern District of New
York, purportedly brought on behalf of all purchasers of the
Company's common stock during the period Jan. 31, 2006 through
Aug. 8, 2006.
The complaint alleged, among other things, that the Company and
some of its former officers and directors made materially false
and misleading statements regarding its operations, management
and internal controls in violation of Sections 10(b) and 20(a)
of the U.S. Securities Exchange Act of 1934 and Rule 10b-5.
The individual defendants were Lawrence S. Bellone, a former
director, Executive Vice President, Corporate Development,
principal accounting officer and Chief Financial Officer;
Christopher d'Arnaud-Taylor, a former director, Chairman,
President and Chief Executive Officer; and Jeffrey S. Langberg,
a former director.
The plaintiffs sought, among other things, unspecified
compensatory damages and reasonable costs and expenses,
including counsel fees and expert fees.
Six nearly identical class action complaints were then filed in
the same court, all of which were later consolidated into one
action, "In re Xethanol Corporation Securities Litigation, 06
Civ. 10234 (HB) (S.D.N.Y.)."
The plaintiffs filed their amended consolidated complaint on
March 23, 2007.
On Nov. 28, 2007, the defendants, including the Company, reached
an agreement in principle with the plaintiffs' lead counsel to
settle the class action.
In connection with the settlement, the plaintiffs received
US$2.8 million, of which the Company paid US$400,000 and its
insurance carriers paid US$2.4 million. In addition, the
Company's insurance carriers paid US$300,000 in legal costs.
The suit is "In Re Xethanol Corporation Securities Litigation,
Case No. 1:06-cv-10234-HB," filed in the U.S. District Court for
the Southern District of New York, Judge Harold Baer, presiding.
Representing the plaintiffs is:
Kim Elaine Miller, Esq. (kimmiller225@yahoo.com)
Kahn Gauthier Swick, LLC
12 East 41st Street, 12th Floor
New York, NY 10017
Phone: 212-696-3730
Fax: 504-455-1498
Representing the defendant is:
Katherine Blackwood Harrison, Esq. (kh@pwlawyers.com)
Paduano & Weintraub LLP
1251 Avenue of The Americas, 9th Floor
New York, NY 10020
Phone: 212-785-9100
Fax: 212-785-9099
LEHMAN BROTHERS: Amended Complaint Filed in Suit v. Underwriters
----------------------------------------------------------------
NEW YORK, Dec. 2, 2008 -- The following was issued today by
law firms Grant & Eisenhofer P.A., Kirby McInerney LLP, Gardy &
Notis, LLP, and Law Offices Bernard M. Gross, P.C.: Notice is
hereby given that on December 2, 2008, an amended class action
complaint ("Complaint") was filed in the United States District
Court for the Southern District of New York on behalf of a class
(the "Class") consisting of all persons who, between July 31,
2007 and September 14, 2008 inclusive (the "Class Period")
purchased debt, preferred stock or other securities (other than
common stock), including structured notes, of Lehman Brothers
Holdings, Inc. ("Lehman" or the "Company") in or traceable to
any public offerings conducted by Lehman (the "Public
Offerings") against certain officers and directors of Lehman and
certain Underwriters, alleging claims under Sections 11,
12(a)(2) and 15 of the Securities Act of 1933, respectively 15
U.S.C. Sections 77k, 771(a)(2) and 77o. Lehman is not named as
a defendant since it has filed for bankruptcy.
The case is styled, "Jeffrey Stark, et al. v. Erin Callan,
et al., No. 08 Civ. 9793 (S.D.N.Y.)."
The Complaint asserts that Defendants failed to disclose
the true nature and extent of Lehman's exposure to losses
resulting from trading in risky mortgage-backed securities and
proper values of its assets, and that the registration
statements and prospectuses contained both material
misstatements and omissions regarding the financial health of
the Company which Plaintiffs and the Class relied on to their
detriment.
The Complaint further alleges that Defendants could have --
and should have -- discovered the material misstatements and
omissions in the Company's prospectuses and registration
statements prior to filing them with the SEC and distributing
them to the investing public. Instead, they failed to do so as
a result of a negligent and grossly inadequate due diligence
investigation.
On September 15, 2008, Lehman filed a voluntary petition to
reorganize under Chapter 11 of the Federal Bankruptcy Code in
the U.S. Bankruptcy Court for the Southern District of New York
in the largest bankruptcy filing in history; largely wiping out
the investment interests of the Class.
As a result of the dissemination of the false and
misleading statements set forth in the Complaint, the market
price of Lehman debt, preferred stock or other securities
including structured notes (the "Lehman securities") was
artificially inflated during the Class Period.
Unaware of the false and misleading statements described in
the Complaint, Plaintiffs and other members of the Class relied,
to their detriment, on the integrity of the market price of the
Lehman securities. Had Plaintiffs and the other members of the
Class known the truth, they would not have purchased said
securities, or would not have purchased them at the inflated
prices that were paid.
The plaintiffs seek to recover damages on behalf of class
members.
For more details, contact:
James J. Sabella, Esq. (jsabella@gelaw.com)
Grant & Eisenhofer P.A.
485 Lexington Avenue
New York, NY 10017
Phone: 646-722-8500
Mark A. Strauss, Esq. (mstrauss@kmllp.com)
Kirby McInerney LLP
825 Third Avenue
New York, NY 10022
Phone: 212-371-6600
Mark C. Gardy, Esq. (mgardy@gardylaw.com)
Gardy & Notis, LLP
40 Sylvan Avenue, Suite 110
Englewood Cliffs, New Jersey 07632
Phone: 201-567-7377
- and -
Deborah R. Gross, Esq. (debbie@bernardmgross.com)
100 Penn Square East
Philadelphia, PA 19107
Phone: 215-561-3600
MEDICAL INFORMATION: Mass. Court Still to Certify "Hubert" Suit
---------------------------------------------------------------
The U.S. District Court for the District of Massachusetts has
yet to rule on the class certification and summary judgment
motions in a lawsuit filed against Medical Information
Technology, Inc.
On Feb. 10, 2005, Michael Hubert, a former Meditech employee,
filed a complaint against the Medical Information Technology
Profit Sharing Plan; A. Neil Pappalardo, its Trustee and company
director; and five other company directors -- Lawrence A.
Polimeno, Roland L. Driscoll, Edward B. Roberts, Morton E.
Ruderman and L.P. Dan Valente.
The complaint is purportedly brought on the plaintiff's own
behalf and on behalf of a purported class consisting of "all
participants in the [Plan] who have received any distribution
since Jan. 1, 1998 and who did not receive the fair value of
their benefits." It alleges that:
-- the Trustee and Directors are fiduciaries of the
Plan in valuing Meditech's common stock for purposes of
redemption and payment of a participant's benefits
under the Plan;
-- the Directors, in connection with an annual
contribution of the company's common stock to the Plan,
have undervalued the company's common stock and have
not paid retiring or terminating participants in the
Plan the fair value of their interests in the Plan;
-- Meditech's founders and controlling shareholders,
including some of the Directors, have been buyers of
Meditech common stock and have benefited from the low
price established by Mr. Pappalardo and approved
without adequate care by the other Directors;
-- Mr. Pappalardo is not independent and that neither
he nor the other Directors have relied upon an
independent appraiser;
-- by failing to fairly value the benefits due each
employee participating in the Plan upon his or her
termination, all of the defendants violated their
fiduciary duties to the participants of the Plan and
that as a result, the Plaintiff and members of the
purported class are due benefits from the Plan; and
-- the Directors violated fiduciary duties to the
participants of the Plan in violation of the Employee
Retirement Income Security Act.
The complaint seeks certification as a class action, a judgment
against the defendants, a permanent injunction ordering the Plan
to consult an outside appraiser in valuing the plan's assets,
removal of Mr. Pappalardo as the Plan Trustee, and damages,
interest, attorneys' fees and costs.
On March 20, 2006, the judge dismissed the breach of fiduciary
duty claims brought against the individual defendants.
The remaining claim is an ERISA benefits claim against the plan,
the plan's trustee, and the company. The judge did not rule on
the plaintiff's request for the complaint to be a class action.
In March 2007, the court denied the plaintiff's motion for the
complaint to be certified as a class action. Subsequently, the
plaintiff requested reconsideration of the decision, which was
also denied.
The plaintiff then sought permission to appeal the decision in
the U.S. Court of Appeals for the First Circuit. In July 2007
this was also denied. Discovery was closed on Nov. 27, 2007.
In March 2008, the plaintiffs filed an amended motion for class
certification, which the defendants have opposed. In April
2008, the defendants filed a motion for summary judgment, which
the plaintiffs have also opposed.
A hearing on the class certification and summary judgment
motions took place on June 17, 2008. The result is still
pending.
The company reported no development in the matter in its Nov. 3,
2008 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30, 2008.
The suit is "Hubert v. Medical Information Technology Profit
Sharing Plan, et al., Case No. 1:05-cv-10269-RWZ," filed in the
U.S. District Court for the District of Massachusetts, Judge Rya
W. Zobel, presiding.
Representing the plaintiffs is:
Michael A. Collora, Esq. (mcollora@dwyercollora.com)
Dwyer & Collora, LLP
Federal Reserve Bldg., 600 Atlantic Ave., 12th Floor,
Boston, MA 02210
Phone: 617-371-1002
Fax: 617-371-1037
Representing the defendants is:
Kevin P. Martin, Esq. (Kmartin@goodwinprocter.com)
Goodwin Proctor, LLP
Phone: 617-570-1000
Fax: 617-523-1231
NVR INC: Faces Multiple Overtime Wage Suits in Various States
-------------------------------------------------------------
NVR, Inc., continues to face several purported class-action
lawsuits in Ohio, Maryland, Pennsylvania, and New York in
connection with unpaid overtime wages.
In July 2007, former employees filed the lawsuits against the
company before the Court of Common Pleas in Allegheny County,
Pennsylvania; the Court of Common Pleas in Hamilton County,
Ohio; the Superior Court in Durham County, North Carolina; and
the Circuit Court in Montgomery County, Maryland; and the
Superior Court in New Jersey.
The suits allege that the company incorrectly classified its
sales and marketing representatives as being exempt from
overtime wages.
These lawsuits are similar in nature to another lawsuit filed on
Oct. 29, 2004, by another former employee before the U.S.
District Court for the Western District of New York.
The complaints seek injunctive relief, an award of unpaid wages,
including fringe benefits, liquidated damages equal to the
overtime wages allegedly due and not paid, attorney and other
fees and interest, and where available, multiple damages. The
suits were filed as purported class actions.
However, none of the groups of employees that the lawsuits
purport to represent have been certified as a class.
The lawsuits filed in Ohio, Pennsylvania, Maryland and New
Jersey have been stayed pending further developments in the New
York action.
The company reported no development in the matter in its Nov. 3,
2008 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30, 2008.
NVR, Inc. -- http://www.nvrinc.com/-- is engaged in the
construction and sale of single-family detached homes, town
homes and condominium buildings. NVR also operates a mortgage
banking business.
ORPHAN MEDICAL: Eight Circuit Affrims Dismissal of "Little Gem"
---------------------------------------------------------------
The U.S. Court of Appeals for the Eighth Circuit affirmed the
dismissal of the matter, "Little Gem Life Sciences LLC v.
Orphan Medical, Inc., et al., Case No. 0:06-cv-01377-ADM-AJB,"
which was filed against Jazz Pharmaceuticals, Inc.'s wholly-
owned subsidiary, Orphan Medical, LLC.
On April 10, 2006, Little Gem Life Sciences LLC, individually
and purportedly on behalf of a class of persons similarly
situated, filed a complaint against Orphan Medical, Inc., and
former officers of Orphan Medical before the U.S. District Court
for the District of Minnesota.
The complaint alleges that the defendants made false and
misleading statements in the proxy statement prepared by Orphan
Medical in connection with the solicitation of proxies to be
voted at the special meeting of Orphan Medical stockholders held
on June 22, 2005. The purpose of the special meeting was to
consider and vote upon a proposal to adopt the definitive merger
agreement pursuant to which Jazz Pharmaceuticals, Inc., acquired
Orphan Medical.
The plaintiff seeks damages for itself and the putative class,
in an unspecified amount, together with interest, litigation
costs and expenses, and its attorneys' fees and other
disbursements, as well as unspecified other and further relief.
On Oct. 25, 2006, the defendants filed a motion to dismiss the
complaint and oral argument on the motion was heard by the U.S.
District Court for the District of Minnesota.
On Feb. 16, 2007, the U.S. District Court for the District of
Minnesota granted the defendants' dismissal motion, with leave
to amend.
On March 14, 2007, the plaintiff filed an amended complaint, and
the defendants responded with another dismissal motion on
March 16, 2007.
Oral argument on the dismissal motion was heard on June 8, 2007.
On Sept. 13, 2007, the U.S. District Court for the District of
Minnesota granted the defendants' request and dismissed the
complaint with prejudice.
On Sept. 28, 2007, the plaintiff filed a Notice of Appeal to the
U.S. Court of Appeals for the Eighth Circuit. The plaintiff
then filed its brief with the U.S. Court of Appeals for the
Eighth Circuit.
On Dec. 21, 2007, the defendants filed their brief with the U.S.
Court of Appeals for the Eighth Circuit. On Jan. 8, 2008, the
plaintiff filed a reply brief. Oral arguments were heard on May
15, 2008.
On Aug. 11, 2008, the U.S. Court of Appeals for the Eighth
Circuit affirmed the judgment of the U.S. District Court for the
District of Minnesota in favor of the defendant. The time to
appeal this decision has elapsed, according to Jazz
Pharmaceuticals Nov. 14, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period
ended Sept. 30, 2008.
The suit is "Little Gem Life Sciences LLC v. Orphan Medical,
Inc., et al., Case No. 0:06-cv-01377-ADM-AJB," filed in the U.S.
District Court for the District of Minnesota, Judge Ann D.
Montgomery, presiding.
Representing the plaintiffs are:
Joel C. Feffer, Esq. (jcfeffer@hfesq.com)
Harwood Feffer LLP
488 Madison Ave 8th Floor
New York, NY 10022
Phone: 212-935-7400
- and -
Gregg M. Fishbein, Esq. (gmfishbein@locklaw.com)
Lockridge Grindal Nauen PLLP
100 Washington Ave. S Ste. 2200
Mpls, MN 55401-2179
Phone: 612-339-6900
Fax: 612-339-0981
Representing the defendants are:
Richard G. Wilson, Esq. (Rich.wilson@maslon.com)
Maslon Edelman Borman & Brand
90 S 7th St. Ste. 3300
Mpls, MN 55402-4140
Phone: 612-672-8200
Fax: 612-672-8397
- and -
Peter W. Carter, Esq. (carter.peter@dorsey.com)
Dorsey & Whitney LLP
50 S 6th St. Ste. 1500
Mpls, MN 55402-1498
Phone: 612-340-5635
Fax: 612-340-2868
OSHKOSH CORP: Faces Multiple Securities Fraud Lawsuits in Wis.
--------------------------------------------------------------
Oshkosh Corp. is facing several purported securities fraud
class-action lawsuits in the the U.S. District Court for the
Eastern District of Wisconsin, according to the company's Form
8-K Filing with the U.S. Securities and Exchange Commission.
On and after Sept. 19, 2008, several shareholder class-action
lawsuits were filed against the company and its Chairman and
Chief Executive Officer and a Director, Robert G. Bohn.
The complaints allege securities law violations and seek
unspecified damages relating to the substantial reduction in
the company's stock price on and after June 26, 2008.
Each of the complaints alleges that the company made material
false statements and omissions relating to the company's
operations and performance prior to the company's June 26, 2008
announcement that the company were lowering the company's
earnings expectations for the third quarter of fiscal 2008 from
income of $1.40 to $1.50 per share to a loss of $1.22 to $1.32
per share.
Oshkosh Corp. -- http://www.oshkoshcorporation.com/-- is a
designer, manufacturer and marketer of a range of specialty
vehicles and vehicle bodies. The company operates in four
segments: access equipment, defense, fire & emergency, and
commercial. As a manufacturer of severe-duty, heavy- and
medium-payload tactical trucks for the United States Department
of Defense (DoD), the company manufactures vehicles that perform
a variety of tasks, such as hauling tanks, missile systems,
ammunition, fuel and cargo for combat units. The company
entered the firefighting apparatus market through the
acquisition of Pierce Manufacturing Inc. (Pierce), which is
engaged in manufacturing and marketing of firefighting vehicles.
The company subsequently expanded into additional emergency
response and geographic markets to form its fire & emergency
segment.
TRAVELERS CASUALTY: Appeals Order in Coy Chiropractic Litigation
----------------------------------------------------------------
Travelers Casualty and Surety has petitioned the Fifth District
appeals court in Mount Vernon to review an Oct. 14, 2008 order
of Madison County Circuit Judge Daniel Stack certifying a class-
action lawsuit of the Lakin Law Firm, Steve Korris of the
Madison County Record reports.
Lakin client Coy Chiropractic Health Center sued Travelers in
2005, alleging it improperly reduced payouts to health care
providers for treatments of accident victims, reports the
Madison County Record.
Judge Stack has allowed key issues to remain secret, and the
Fifth District will do the same.
Upon receiving the file from Madison County, the Fifth District
placed 2,010 pages under seal on a motion from both sides.
Robert Schmieder and Jeff Millar of the Lakin Law Firm in Wood
River and Timothy Campbell of Godfrey are representing Coy
Chiropractic. Troy Bozarth of Edwardsville represents
Travelers, along with Chicago lawyers Robert Johnson, Jeffrey
Lennard, Steven Levy and Lisa Lilly, according to the Madison
County Record.
VESTIN REALTY: March Trial Set for Vestin Fund I Merger Lawsuit
---------------------------------------------------------------
A March 27, 2009 trial has been scheduled for a a breach of
contract class-action lawsuit filed against Vestin Realty
Mortgage I, Inc. and Vestin Mortgage, Inc., in San Diego
Superior Court in California, according to the company's Nov.
14, 2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended Sept. 30, 2008.
Vestin Realty Mortgage I, Inc. (VRM I) and Vestin Mortgage, Inc.
remain defendants in a breach of contract lawsuit filed with the
San Diego Superior Court by certain plaintiffs who allege, among
other things, that they were wrongfully denied appraisal rights
in connection with the merger of Vestin Fund I into VRM I.
The suit is being brought as a purported class action on behalf
of all members of Vestin Fund I who did not vote in favor of the
merger.
Las Vegas, Nevada-based Vestin Realty Mortgage I, Inc. --
http://www.vestinrealtymortgage1.com/-- formerly Vestin Fund I,
LLC, is a real estate investment trust. The Company primarily
invests in loans secured by first and second trust deeds on real
property. The loans categories include raw and unimproved land,
acquisition and development, construction, commercial and
residential. The Company had loans in various states, such as
Arizona, California, Hawaii, Nevada, New York, Oklahoma, Oregon,
Texas, Washington and Wisconsin. The Company's manager is
Vestin Mortgage, Inc., which is a wholly owned subsidiary of
Vestin Group, Inc.
VESTIN REALTY: March Trial Set for Vestin Fund II Merger Lawsuit
----------------------------------------------------------------
The trial in a breach of contract suit filed against Vestin
Realty Mortgage II, Inc. and Vestin Mortgage, Inc., in San Diego
Superior Court in California, is scheduled to begin on March 27,
2009, according to the company's Nov. 14, 2008 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the
quarterly period ended Sept. 30, 2008.
Vestin Realty Mortgage II, Inc. (VRM II) and Vestin Mortgage,
Inc., were named defendants in a breach of contract suit filed
in the San Diego Superior Court by certain plaintiffs who
allege, among other things, that they were wrongfully denied
appraisal rights in connection with the merger of Vestin Fund II
into VRM II.
The suit is being brought as a purported class action on behalf
of all members of Vestin Fund II who did not vote in favor of
the merger.
Las Vegas, Nevada-based Vestin Realty Mortgage II, Inc. --
http://www.vestinrealtymortgage2.com-- operates as a real
estate investment trust. It was organized for the sole purpose
of effecting a merger with Vestin Fund II, LLC. Fund II is
engaged in investing in real estate loans. On March 31, 2006,
Fund II merged into VRM II. It invests in loans secured by
real estate through deeds of trust or mortgages.
WESTERN UNION: Faces Lawsuit in Mich. Alleging FACTA Violations
---------------------------------------------------------------
The Western Union Co. is facing a purported class-action lawsuit
in Michigan alleging violations of the Fair and Accurate Credit
Transactions Act of 2003, according to the company's Nov. 3,
2008 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30, 2008.
On Sept. 25, 2008, the company was served with a purported class
action complaint filed in the U.S. District Court for the
Eastern District of Michigan, alleging that Western Union
willfully and negligently violated FACTA by providing debit and
credit card expiration dates on electronically printed receipts
for transactions initiated on the company's website.
The federal law provides for statutory damages for each willful
violation. FACTA also authorizes damages for negligent
violations.
The suit is "Burnett v. Western Union Financial Services,
Incorporated et al., Case No. 2:08-cv-14129-SJM-RSW ," filed in
the U.S. District Court for the Eastern District of Michigan,
Judge Stephen J. Murphy, III, presiding.
Representing the plaintiffs are:
Caleb L.H. Marker, Esq. (marker@consumerpractice.com)
Consumer Law Center, PLLC
P.O. Box 6675
601 Abbott Road, Suite 100
East Lansing, MI 48826-6675
Phone: 517-998-7400
Fax: 888-490-7750
- and -
Hart L. Robinovitch, Esq. (hlr@zimmreed.com)
Zimmerman Reed
14646 N. Kierland Boulevard
Suite 145
Scottsdale, AZ 85254
Phone: 480-348-6400
Fax: 480-348-6415
Representing the defendants is:
Andrew J. Kolozsvary
Dykema Gossett
400 Renaissance Center
Detroit, MI 48243
Phone: 313-568-6800
Fax: 313-568-6701
e-mail: akolozsvary@dykema.com
YTB INT'L: Ill. Court Sets Dec. 8 Status Conference for Lawsuits
----------------------------------------------------------------
The U.S. District Court for the Southern District of Illinois
set a Dec. 8, 2008 status conference for two purported class-
action lawsuits against YTB International, Inc., which alleges
that the company is an illegal pyramid scheme, Steve Gonzalez of
the Madison County Record reports.
One of the suits was field by Faye Morrison and Kwame Thompson
filed on Aug. 8, 2008. They seek to represent a putative class
who allege YTB operates an illegal pyramid sales scheme and
employs an illegal chain referral sales technique in violation
of the Illinois Consumer Fraud and Deceptive Business Practices
Act.
Ms. Morrison, of St. Louis and Mr. Thompson, of Atlanta, acted
as both independent marketing representatives (IMRs) and
referring travel agents (RTAs) for YTB. Their suit seeks at
least $100 million in damages on behalf of the putative class,
the Madison County Record reports.
The two have retained Rex Carr, Christian Montroy and Michael
Marker of East St. Louis to represent them. In addition, Jay
Kanzler, Jr., and Brian Massimino of St. Louis will assist in
representing the class.
The Madison County Record reported that the second purported
class-action suit against YTB and its subsidiaries was filed by
Jeffrey and Polly Hartman. Their suit is almost identical to
the first case, however they are represented by different
lawyers. They filed their lawsuit, captioned, "Hartman et al.
v. YTB International, Inc. et al., Case No. 3:08-cv-00579-MJR-
CJP," seven days after the first one.
John Carey, Tiffany Marko and Francis "Casey" Flynn of Carey &
Danis in St. Louis represent the Hartmans, according to the
Madison County Record.
New Securities Fraud Cases
SOUTHWEST WATER: Barroway Topaz Announces Securities Suit Filing
----------------------------------------------------------------
RADNOR, Pa., Dec. 02, 2008 -- The following statement was
issued today by the law firm of Barroway Topaz Kessler Meltzer &
Check, LLP: Notice is hereby given that a class action lawsuit
was filed in the United States District Court for the Central
District of California on behalf of purchasers of securities of
SouthWest Water Company ("SouthWest Water" or the "Company")
between May 10, 2005 through November 7, 2008 inclusive (the
"Class Period").
SouthWest Water provides operations, maintenance and
management services, including water production, treatment and
distribution, wastewater collection and treatment, customer
service, and utility infrastructure construction management.
The Company owns regulated public utilities and also serves
cities, utility districts and private companies under contract.
More specifically, defendants failed to disclose or
indicate the following:
-- that the Company had improperly accounted for the rate
of depreciation of assets acquired by acquisition;
-- that the Company had improperly accounted for revenues
and related costs associated with the installation of
water and sewer taps;
-- that the Company's financial statements were not
prepared in accordance with Generally Accepted
Accounting Principles ("GAAP");
-- that the Company lacked adequate internal and
financial controls; and
-- that, as a result of the foregoing, the Company's
financial statements were materially false and
misleading at all relevant times.
On November 10, 2008, the Company shocked investors when it
announced that the Company's audit committee concluded that the
financial statements for the years ended December 31, 2005, 2006
and 2007, and for each of the quarters therein, as well as for
the quarters ended March 31, 2008 and June 30, 2008, should no
longer be relied upon and would be restated.
The errors that led to the restatement related to the
establishment of the rate of depreciation of assets acquired by
the Company through acquisitions, and in accounting for revenues
and related costs associated with the installation of water and
sewer taps.
Upon the release of this news, the Company's shares fell
$2.97 per share, or 36.13 percent, to close on November 10, 2008
at $5.25 per share, on unusually heavy trading volume.
For more details, contact:
Darren J. Check, Esq.
David M. Promisloff, Esq.
Barroway Topaz Kessler Meltzer & Check, LLP
280 King of Prussia Road
Radnor, PA 19087
Phone: 1-888-299-7706 or 1-610-667-7706
e-mail: info@btkmc.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, Stephanie T. Umacob, Gracele D.
Canilao, and Peter A. Chapman, Editors.
Copyright 2008. All rights reserved. ISSN 1525-2272.
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