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/raid1/www/Hosts/bankrupt/CAR_Public/090429.mbx C L A S S A C T I O N R E P O R T E R Wednesday, April 29, 2009, Vol. 11, No. 83 Headlines ATLANTIC RECORDING: Ore. Court Seals Papers in "Andersen" Case CAMTEK LTD: June 5 Hearing Set for Bid to Junk "Lapiner" Suit CENTERLINE HOMES: Faces Suit in Fla. Over Faulty Chinese Drywall FAIRFIELD GREENWICH: Amended Complaint Filed in N.Y. Litigation FAMILY DOLLAR: Defending Suit Over Discriminatory Pay Practices FAMILY DOLLAR: N.C. Overtime Compensation Cases in Discovery FAMILY DOLLAR: To Seek Supreme Court Review of FLSA Suit Ruling FORD MOTOR: Okla. Supreme Court Reinstates "Cuesta" Litigation HEALTHSOUTH CORP: June 11 Hearing Set for E&Y's $109M Settlement KB HOME: Nov. 10 Trial Set for "Bagley" ERISA Violations Suit MERCEDES-BENZ USA: N.J. Court Certifies Class in "Tele-Aid" Case MERCK & CO: Faces Vioxx-Related Litigation in Australian Court MERIX CORP: Remanded Securities Fraud Lawsuit Ongoing in Oregon NATIONAL MONEY: Comments on Litigation Trial in Toronto, Ontario NITROMED INC: Settlement of Merger Suit Pending Court Approval NORTHFIELD LABORATORIES: Consolidated Securities Suit Ongoing OIL COMPANIES: Mass. Town Receives $17,870 From MTBE Settlement QUARRY HILLS: Faces Lawsuit in N.C. Over Covenant Violations ROCKIES REGION: Final Settlement of Suit v. PDC Okayed in April SYMANTEC CORP: Aug. 28 Hearing Set for "Heverly" Suit Settlement WRT ENERGY: June 8 Hearing Set for $1.8M Securities Suit Deal ZUMIEZ INC: Announces Dismissal of Wash. Securities Litigation ZYNEX INC: CEO Responds to Allegations in Securities Fraud Suits ZYNEX INC: To Defend Mishkins' Suit Over Restatement of Finances New Securities Fraud Cases OPPENHEIMER ROCHESTER: Dyer & Berens Files Securities Fraud Suit THEMA FUND: Johnson Bottini Files Securities Fraud Suit in N.Y. ********* ATLANTIC RECORDING: Ore. Court Seals Papers in "Andersen" Case -------------------------------------------------------------- The U.S. District Court for the District of Oregon ordered the sealing of the entire record of the motion for class-action certification in the matter, "Andersen v. Atlantic Recording Corporation et al., Case No. 3:2007-cv-00934," according to a posting at Slashdot. The suit was filed by Tanya Andersen on June 22, 2007 against Atlantic Recording Corp., Priority Records, LLC, Capitol Records, Inc., UMG Recordings, Inc., BMG Music, Recording Industry Association of America (RIAA), Safenet, Inc., and Settlement Support Center, LLC. Ms. Andersen, a disabled single mother, filed the lawsuit against RIAA and other defendants over its tactics to fight piracy. Ms. Andersen originally sued the RIAA after its representatives threatened to interrogate her young daughter if she did not pay thousands of dollars for music she downloaded from somebody else (Class Action Reporter, March 20, 2008). Ms. Andersen had defended herself against copyright infringement allegations by the RIAA for almost two years, until the RIAA finally dropped its case against her "with prejudice." Ms. Andersen's countersuit is for malicious prosecution. In it, she alleges that RIAA used illegal and flawed methods when investigating people for downloading or swapping copyrighted songs without paying. Furthermore, Ms. Andersen claims that RIAA knew of the faulty methods but continued to pursue its lawsuits, even against innocent people such as herself. On Feb. 28, 2008, the Class Action Reporter reported that Judge Anna J. Brown of the U.S. District Court for the District of Oregon tossed out the purported class-action lawsuit against RIAA. However, CBS News reported that Ms. Andersen filed a new complaint accusing record companies and RIAA of racketeering, fraud, and illegal spying. According to CBS News, Ms. Andersen's amended complaint filed with the U.S. District Court in Portland seeks national class- action status for other people allegedly victimized by the recording industry's anti-piracy campaign and the company it hired, MediaSentry. The new lawsuit accuses the industry and MediaSentry of spying "by unlicensed, unregistered and uncertified private investigators" who "have illegally entered the hard drives of tens of thousands of private American citizens" in violation of laws "in virtually every state in the country." The information was used to file "sham" lawsuits intended only as intimidation to further the anti-piracy campaign, the lawsuit said. Lory Lybeck, Esq., Ms. Andersen's attorney said that the lawsuit is partly aimed at forcing the industry to reveal how extensive the spying had become. "We're very pleased that we'll finally be able to force the RIAA and MediaSentry to give up secret records they have steadfastly refused to disclose in tens of thousands of cases that they've filed," Ms. Lybeck said. The suit is "Andersen v. Atlantic Recording Corporation et al., Case No. 3:2007-cv-00934," filed in the U.S. District Court for the District of Oregon. Representing the plaintiffs are: Lory Ray Lybeck, Esq. (lrl@lybeckmurphy.com) Lybeck Murphy, LLP 7525 SE 24th Street Suite 500 Mercer Island, WA 98040-2336 Phone: (206) 230-4255 Fax: (206) 230-7791 - and - Richard A. Adams, Esq. (radams@pattonroberts.com) Patton, Roberts, McWilliams & Capshaw, LLP Century Bank Plaza, Suite 400 2900 St. Michael Drive Texarkana, TX 75503 Phone: (903) 334-7000 Fax: (903) 334-7007 Representing the defendant are: Amy Bauer, Esq. (amy.bauer@hro.com) Holme Robert & Owen, LLP 1700 Lincoln Street Suite 4100 Denver, CO 80203 Phone: (303) 866-0417 Fax: (303) 866-0200 - and - Kenneth R. Davis, II, Esq. (davisk@lanepowell.com) Lane Powell P.C. 601 S.W. Second Avenue Suite 2100 Portland, OR 97204-3158 Phone: (503) 778-2121 Fax: (503) 778-2200 CAMTEK LTD: June 5 Hearing Set for Bid to Junk "Lapiner" Suit -------------------------------------------------------------- A June 5, 2009 hearing has been set for the motion to dismiss a purported class-action complaint entitled "Yuval Lapiner v. Camtek, Ltd. et al." On March 7, 2008, the purported class-action complaint was filed in the U.S. District Court for the Northern District of California on behalf of purchasers of the company's ordinary shares between Nov. 22, 2005 and Dec. 20, 2006. The Class Action Complaint names the Company and certain of the company's directors and officers as defendants. The complaint alleges that the defendants violated Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated thereunder, and breached fiduciary duties by making false and misleading statements in the company's SEC filings and press releases. The plaintiffs seek unspecified compensatory damages against the defendants, as well as attorneys' fees and costs. The company filed a motion to dismiss the CAC, as amended, on Feb. 17, 2009. The hearing on this motion is currently set for June 5, 2009, according to the company's April 8, 2009 Form 20-F filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Camtek Limited -- http://www.camtek.co.il-- designs, develops, manufactures and markets automated optical inspection (AOI), systems and related products. AOI systems are computerized systems that optically inspect various types of electronic product components for defects caused during the manufacturing process. The AOI systems are used for production processes and yields for manufacturers in three industries: the printed circuit board (PCB), industry; the high density substrates for interconnection of integrated circuit devices (IC) substrate, industry and the semiconductor manufacturing and packaging industry. The systems provide the customers with defect detection ability. CENTERLINE HOMES: Faces Suit in Fla. Over Faulty Chinese Drywall ---------------------------------------------------------------- Centerline Homes is facing a purported class-action lawsuit by owners of a town house in the Tradition neighborhood of Port St. Lucie for allegedly using defective Chinese-made drywall, Tyler Treadway of The Fort Pierce Tribune reports. The suit was filed on April 24, 2009 in St. Lucie County Circuit Court in Florida by Frank and Mark Gitto who claim that the Chinese drywall built into their home at 10360 Stephanie Way in 2005 is the type that "emits various sulfide gases and/or other chemicals" creating "noxious, 'rotten-egg-like' odors." The couple also claim that the "off-gassing" also can corrode air- conditioner and refrigerator coils and other wiring as well as household utensils and jewelry, according to The Fort Pierce Tribune report. "The compounds emitted by the drywall ... at issue are also capable of ... harming the health of individuals subjected to prolonged exposure," according to the lawsuit. The Gittos lawsuit alleges, even if the Chinese drywall in their home isn't defective, just the fact that it's there has diminished the value of their home, and they "are entitled to recover damages for that diminution," reports The Fort Pierce Tribune. The Fort Pierce Tribune reported that the lawsuit, doesn’t seek a monetary amount, but Jeremy W. Alters, Esq., whose Miami law firm filed the suit and five others like it in other Florida courts, said he's asking that Centerline and any other builders who used Chinese dry wall be required to: -- Replace all Chinese drywall, as well as all wiring, pipes, building materials, furniture, appliances and household items "affected by sulfur emissions." -- Have houses tested to make sure they're "sulfur-free." -- Pay homeowners for the loss in the value of their homes. -- Give homeowners a lifetime, transferable warrantee on the homes. -- Compensate residents for all current and future health problems resulting from the emissions. FAIRFIELD GREENWICH: Amended Complaint Filed in N.Y. Litigation --------------------------------------------------------------- Investors who filed a negligence suit against Fairfield Greenwich Group, the hedge fund that channeled $7 billion to fraudster Bernard L. Madoff, have added claims of fraud and named a co-founder's daughter as a defendant in the proposed class-action case, Law360 reports. The fresh allegations are contained in a 128-page amended complaint lodged on April 24, 2009 in the U.S. District Court for the Southern District of New York, according to the Law360 report. FAMILY DOLLAR: Defending Suit Over Discriminatory Pay Practices --------------------------------------------------------------- Family Dollar Stores, Inc. continues to defend the allegations in the "Scott" case pending in the U.S. District Court for the Western District of North Carolina, Charlotte Division, according to the company's April 8, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Feb. 28, 2009. On Oct. 14, 2008, a complaint was filed in the U.S. District Court in Birmingham, Alabama captioned, "Scott, et al v. Family Dollar Stores, Inc.," alleging discriminatory pay practices with respect to the company's female store managers. This case was pleaded as a putative class-action or collective action under applicable statutes on behalf of all Family Dollar female store managers. The plaintiffs seek recovery of compensatory and punitive money damages, recovery of attorneys' fees and equitable relief. The case has been transferred to the N.C. Federal Court. Family Dollar Stores, Inc. -- http://www.familydollar.com/-- operates a chain of more than 6,500 general merchandise retail discount stores in 44 states, providing consumers with a selection of merchandise in neighborhood stores. The company's merchandise assortment includes consumables, home products, apparel and accessories, and seasonal and electronics. The company's products include apparel, food, cleaning and paper products, home decor, beauty and health aids, toys, pet products, automotive products, domestics, seasonal goods and electronics. FAMILY DOLLAR: N.C. Overtime Compensation Cases in Discovery ------------------------------------------------------------ Discovery is ongoing in several overtime compensation cases proceeding as collective or class actions against Family Dollar Stores, Inc., among others, in the U.S. District Court for the Western District of North Carolina, Charlotte Division. Since 2004, numerous cases have been filed by other plaintiffs making various allegations against the company, among others, that the company violated the Fair Labor Standards Act or similar state laws by classifying the named plaintiffs and other current and former Store Managers as "exempt" employees who are not entitled to overtime compensation. The complaints in each action request that the cases proceed as collective actions under the FLSA or as class actions under state law and request recovery of overtime pay, liquidated damages, and attorneys' fees and court costs. Several of these cases have been dismissed or voluntarily withdrawn. The first two of those remaining cases are "Grace v. Family Dollar Stores, Inc.," and "Ward v. Family Dollar, Inc.," both pending in the U.S. District Court for the Western District of North Carolina, Charlotte Division. In those cases, the court has returned orders finding that the plaintiffs were not similarly situated and, therefore, that neither nationwide notice nor collective treatment under the FLSA is appropriate. Hence, the Grace and Ward cases are proceeding as approximately 80 individual plaintiff cases. In addition to Grace and Ward, a total of 12 other same or similar class or collective cases are now pending, all of which are before the N.C. Federal Court. All of these cases have been either transferred by U.S. District Courts in various states to the N.C. Federal Court or were the subject of an order entered by the U.S. Judicial Panel on MultiDistrict Litigation transferring the cases, which were originally filed in the U.S. District Courts in various states, to the N.C. Federal Court for coordination of discovery with the other pending cases. Discovery in the Grace and Ward cases is moving forward on the merits of the individuals' exemption claims and discovery in the remaining cases is being conducted regarding a determination whether the plaintiffs are "similarly situated" such that the cases should proceed as collective actions, or, in the case of the actions brought under state law, as class actions, according to the company's April 8, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission. Family Dollar Stores, Inc. -- http://www.familydollar.com/-- operates a chain of more than 6,500 general merchandise retail discount stores in 44 states, providing consumers with a selection of merchandise in neighborhood stores. the company's merchandise assortment includes consumables, home products, apparel and accessories, and seasonal and electronics. The company's products include apparel, food, cleaning and paper products, home decor, beauty and health aids, toys, pet products, automotive products, domestics, seasonal goods and electronics. FAMILY DOLLAR: To Seek Supreme Court Review of FLSA Suit Ruling --------------------------------------------------------------- Family Dollar Stores, Inc. still intends to petition the U.S. Supreme Court to grant certiorari for review of the ruling in a complaint alleging violations of the Fair Labor Standards Act, according to the company's April 8, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Feb. 28, 2009. On Jan. 30, 2001, Janice Morgan and Barbara Richardson, two individuals who have held the position of Store Manager for subsidiaries of the company, filed a Complaint against Family Dollar in the U.S. District Court for the Northern District of Alabama. The Complaint alleged that the company violated the FLSA by classifying the named plaintiffs and other similarly situated current and former Store Managers as "exempt" employees who are not entitled to overtime compensation. The court allowed the case to proceed as a "collective action" and notice of the pendency of the lawsuit was sent to approximately 13,000 current and former Store Managers holding the position on or after July 1, 1999. Approximately 2,550 of those receiving such notice filed consent forms and joined the lawsuit as plaintiffs, including approximately 2,300 former Store Managers and approximately 250 then current employees. After rulings by the Court on motions to dismiss certain plaintiffs filed by the company, 1,424 plaintiffs remained in the case at the commencement of trial. A jury trial was held in June 2005, in Tuscaloosa, Alabama, and ended with the judge declaring a mistrial after the jury was unable to reach a unanimous decision in the matter. The case was subsequently retried before another Tuscaloosa jury, which found that the company should have classified the Store Manager plaintiffs as hourly employees entitled to overtime pay, rather than as salaried exempt managers, and awarded damages. Subsequently, the Court ruled that the company did not act in good faith in classifying the plaintiffs as exempt, and after making adjustments to the damages award based upon the filing of personal bankruptcy by certain plaintiffs, the Court entered a final modified judgment for approximately $35.6 million. The District Court advised that it would consider the plaintiffs' motion for an award of attorneys' fees and expenses at the conclusion of the appellate process. The company appealed this final judgment to the U.S. Court of Appeals for the 11th Circuit. On Dec. 16, 2008, the Court of Appeals issued a ruling affirming the judgment of the District Court. The company plans to petition the U.S. Supreme Court to grant certiorari for review of this ruling. As of Feb. 28, 2009, the company had accrued liabilities of approximately $51.1 million with respect to this litigation, including $45.0 million recognized as a litigation charge in the second quarter of fiscal 2006 and $6.1 million related to previous charges and ongoing interest. Family Dollar Stores, Inc. -- http://www.familydollar.com/-- operates a chain of more than 6,500 general merchandise retail discount stores in 44 states, providing consumers with a selection of merchandise in neighborhood stores. the company's merchandise assortment includes consumables, home products, apparel and accessories, and seasonal and electronics. The company's products include apparel, food, cleaning and paper products, home decor, beauty and health aids, toys, pet products, automotive products, domestics, seasonal goods and electronics. FORD MOTOR: Okla. Supreme Court Reinstates "Cuesta" Litigation -------------------------------------------------------------- The Oklahoma Supreme Court reinstated reinstated a nationwide class-action lawsuit against Ford Motor Co. and auto parts maker Williams Controls, Inc. that had been tossed by an intermediate appellate court, Andrew Longstreth of Am Law Litigation Daily reports. The suit is captioned, "Braulio Cuesta M.D. v. Ford Motor Co., CJ-04-0511." It contends that certain models of Ford Super Duty pickup trucks and Expedition sport utility vehicles contain faulty accelerator pedals, causing the trucks to idle rather than accelerate when drivers step on the gas. The case, which was first filed in 2004, alleges breach of warranty, negligence, and product liability, according to the Am Law Litigation Daily report. Williams Control was named as co-defendant in the matter on Oct. 1, 2004. The suit sought class-action status, and an unspecified amount of damages on behalf of the class (Class Action Reporter, March 20, 2009). During the second quarter of fiscal 2007, the Oklahoma district court granted the suit class-action status. The company and Ford appealed the District Court's class certification ruling to the Court of Civil Appeals of the State of Oklahoma, and during the second quarter of fiscal 2008, the Appeals Court, in a 3-to-0 decision, reversed the District Court's ruling and decertified the nationwide class. As permitted under Oklahoma law, the plaintiffs filed for a re- hearing by the Appeals Court and during the third quarter of fiscal 2008, this rehearing request was denied. The plaintiffs have since appealed the Court of Civil Appeals' decertification ruling to the Oklahoma Supreme Court, according to the company's Feb. 11, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2008. The Am Law Litigation Daily reported that in reinstating the case, which includes an estimated 300,000-500,000 class members, the Oklahoma Supreme Court found that the trial court did not abuse its discretion in certifying a class on the breach of warranty claims. It declined to affirm class certification on negligence or product liability claims. The suit is "Braulio Cuesta M.D. v. Ford Motor Co., CJ-04-0511," filed in the District Court for Bryan, Oklahoma. For more details, contact: The Burrage Law Firm First United Center Suite 100, 115 N. Washington Durant, OK 74702-1727 Phone: 580-920-0700 e-mail: dburrage@burragelaw.com Web site: http://www.burragelaw.com/ HEALTHSOUTH CORP: June 11 Hearing Set for E&Y's $109M Settlement ---------------------------------------------------------------- The U.S. District Court for the Northern District of Alabama will hold a fairness hearing on June 11, 2009, at 10:00 a.m. for the proposed $109,000,000 settlement by Ernst & Young LLP in the matter, "In re HealthSouth Stockholder Litigation, No. CV-03-BE- 1501-S." The hearing will be held before the Honorable Karon Owen Bowdre, at the United States Courthouse, Hugo L. Black United States Courthouse, 1729 Fifth Avenue North, Birmingham, Alabama. On March 25, 2009, the law firm of Labaton Sucharow LLP, along with Co-Counsel Coughlin Stoia Geller Rudman & Robbins LLP, announced that they have reached a settlement of $109 million with Ernst & Young LLP in a securities class action against HealthSouth Corp. (Class Action Reporter, March 27, 2009). The action, entitled, "In re HealthSouth Corp. Securities Litigation," is being prosecuted for the benefit of a class of investors led by, among others, Lead Plaintiffs the New Mexico State Investment Council and the Educational Retirement Board of New Mexico. The action is pending before the Honorable Karon O. Bowdre in the U.S. District Court for the Northern District of Alabama, Southern Division, and the proposed settlement requires Court approval. Lead Plaintiffs alleged that, during a period of several years, the defendants manipulated their accounting in various ways, which caused HealthSouth's financial statements to be materially false and misleading causing investors to overpay for HealthSouth's securities and suffer hundreds of millions of dollars of damages. Lead Plaintiffs alleged the following accounting errors and irregularities against Ernst & Young LLP (E&Y): -- E&Y knew that HealthSouth's financial statements were materially overstated. -- E&Y failed to conduct audits of HealthSouth that were in compliance with Generally Accepted Auditing Standards. -- E&Y did not test a single nonstandard journal entry or test the general ledger of HealthSouth. -- E&Y permitted HealthSouth to impose scope limitations on its audit of the Company. Thomas A. Dubbs, Senior Partner at Labaton Sucharow LLP, stated that "We are pleased with this settlement, which is one of the largest settlements ever obtained against an outside auditor in a class action securities fraud case." Lead Plaintiffs previously settled with former defendant HealthSouth Corp. in January 2007 for $445 million. For more details, contact: Jennifer Bankston (jbankston@labaton.com) Labaton Sucharow LLP Phone: 212-907-0659 KB HOME: Nov. 10 Trial Set for "Bagley" ERISA Violations Suit ------------------------------------------------------------- The purported class-action lawsuit "Bagley et al., v. KB Home, et al.," in the U.S. District Court for the Central District of California, is set for a Nov. 9, 2010 trial. On March 16, 2007, plaintiffs Reba Bagley and Scott Silver filed an action against against the company, its directors, and certain of its current and former officers under Section 502 of the Employee Retirement Income Security Act, 29 U.S.C. Section 1132. On April 3, 2008, the plaintiffs filed an amended complaint adding Tolan Beck and Rod Hughes as additional plaintiffs and dismissing certain individuals as defendants. All four plaintiffs claim to be former employees of KB Home who participated in the KB Home 401(k) Savings Plan. They allege on behalf of themselves and on behalf of all others similarly situated that all defendants breached fiduciary duties owed to plaintiffs and purported class members under ERISA by failing to disclose information to and providing misleading information to participants in the Plan about alleged prior stock option backdating practices of the Company and by failing to remove the Company's stock as an investment option under the Plan. The plaintiffs allege that this breach of fiduciary duties caused them to earn less on their Plan accounts than they would have earned but for defendants' alleged breach. They seek unspecified money damages and injunctive and other equitable relief. On May 16, 2008, the company filed a motion to dismiss the suit on the basis that the plaintiffs' allegations failed to state a claim against the company. The plaintiffs filed an opposition to the dismissal motion on June 20, 2008. The company filed its reply in support of the motion in July and a hearing on the matter is scheduled for Aug. 4, 2008. The hearing on the motion was held on Sept. 8, 2008. On Oct. 6, 2008, the court issued its order. The court denied the company's motion to dismiss the plaintiffs' claims for breach of fiduciary duty and breach of the duty to monitor and granted the company's motion to dismiss the plaintiffs' claims for breach of the fiduciary duty of disclosure. The court also denied a separate motion to dismiss filed by the individual defendants based on the standing of plaintiffs to sue. The company filed its answer to the first amended complaint on Nov. 5, 2008. On Nov. 24, 2008, the court approved a stipulation to stay all discovery and other proceedings through Feb. 6, 2009, in order to allow the parties time to attempt to settle the plaintiffs' claims through mediation. A mediation session was held on Jan. 27, 2009, but a settlement has not been reached. The court has tentatively scheduled the trial to begin on Nov. 9, 2010. Plaintiffs have served discovery requests on the company, the other defendants and several third parties. The company has also served the plaintiffs with discovery requests, according to its April 9, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended Feb. 28, 2009. The suit is "Bagley et al., v. KB Home, et al., Case No. 2:07- cv-01754-GPS-SS," filed in the U.S. District Court for the Central District of California, Judge George P. Schiavelli, presiding. Representing the plaintiffs are: Stephen J Fearon, Jr., Esq. (stephen@sfclasslaw.com) Squitieri & Fearon LLP 32 East 57th Street, 12th Floor New York, NY 10022 Phone: 212-421-6492 - and - Stephen M. Fishback, Esq. (sfishback@kfjlegal.com) Keller Fishback and Jackson LLP 18425 Burbank Boulevard Suite 610 Tarzana, CA 91356-6918 Phone: 818-342-7442 Fax: 818-342-7616 Representing the defendants are: Marc T.G. Dworsky, Esq. (marc.dworsky@mto.com) Munger Tolles & Olson 355 S. Grand Ave., 35th Fl. Los Angeles, CA 90071-1560 Phone: 213-683-9100 - and - Michael M. Farhang, Esq. (mfarhang@gibsondunn.com) Gibson Dunn and Crutcher 333 South Grand Avenue, Suite 4600 Los Angeles, CA 90071-3197 Phone: 213-229-7005 MERCEDES-BENZ USA: N.J. Court Certifies Class in "Tele-Aid" Case ---------------------------------------------------------------- Judge Dickinson Debevoise of the I.S. District Court for the District of New Jersey certified a class-action case alleging that Mercedes-Benz USA, LLC sold cars equipped with an emergency-response system that the company knew would soon become obsolete, Charles Toutant of The New Jersey Law Journal reports. In granting class-action status to the case, Judge ruled Debevoise that the plaintiffs suffered an ascertainable loss because they bought vehicles designed to last 20 or more years, while the emergency system became useless after 2007. "A class action will be the most efficient method for adjudicating plaintiffs' claims," Judge Debevoise ruled on April 24, 2009, finding the claims met the class-action criteria of Federal Rule of Civil Procedure 23(a): numerosity, commonality, typicality and adequacy of representation, according to The New Jersey Law Journal report. The case, "In Re: Mercedes-Benz Tele-Aid Contract Litigation, MDL 1914," consolidates 10 suits filed in six states against Mercedes-Benz USA, LLC of Montvale, N.J. The New Jersey Law Journal reported that the plaintiffs assert violations of the New Jersey Consumer Fraud Act and a cause of action for unjust enrichment. They claim that Mercedes made statements or omissions of material facts that it knew or should have known were false or misleading when promoting vehicles equipped with "Tele Aid," an emergency response system that linked subscribers to roadside assistance operators through global positioning and cellular technology through AT&T Wireless Services Inc., for a subscription fee. The system ran on analog signals, not digital, and Mercedes-Benz continued to sell vehicles so equipped from 2002 to 2007 even though it knew as early as August 2002 that a change in Federal Communications Commission regulations would allow AT&T to discontinue its analog cellular service in 2008, rendering the system inoperative, the plaintiffs allege. Mercedes-Benz placed a notice about discontinuation of the analog Tele Aid service on its Web site in November 2006. But many car owners did not learn about the change until AT&T sent them letters upon the expiration of their subscriptions in 2007, reports The New Jersey Law Journal. The class certified by Judge Debevoise -- who estimated the class at more than 100,000 members -- consists of two groups of owners who bought a Mercedes-Benz after Aug. 8, 2002: consumers who paid to have their car retrofitted to accommodate a digital version of Tele Aid and those who paid subscription fees for the analog service until it ended in 2007. Compensatory damages for consumers whose cars were retrofitted would come to about $1,000 per vehicle, lead plaintiffs counsel Jonathan Selbin of Lieff, Cabraser, Heimann & Bernstein in New York tells The New Jersey Law Journal. Mr. Selbin furhter told The New Jersey Law Journal that compensatory damages would be somewhat more for consumers who paid subscription fees until 2007; they would receive $1,000 for retrofitting as well as compensation for the period they went without Tele Aid service. MERCK & CO: Faces Vioxx-Related Litigation in Australian Court -------------------------------------------------------------- Merck & Co., Inc. faces a purported class-action lawsuit in Australian in connection to Vioxx, Kate Hagan of The Age reports. The lawsuit, which is pending in the Federal Court of Australia, was brought on behalf of every Australian who had cardiovascular conditions after completing at least one prescription of Vioxx between June 30, 1999, and its worldwide recall in 2004, reports The Age. The class action, which includes more than 1000 people, alleges Merck covered up a higher risk of cardiovascular conditions, according to The Age report. MERIX CORP: Remanded Securities Fraud Lawsuit Ongoing in Oregon --------------------------------------------------------------- The remanded consolidated securities fraud class-action suit entitled, "Central Laborers Pension Fund v. Merix Corp. et al, Case No. 3:04-cv-00826-MO," is ongoing in the U.S. District Court for the District of Oregon. On June 17, 2004, the company and certain of its executive officers and directors were named as defendants in the first of four purported class action suits alleging violations of federal securities laws. These four cases, which were filed in the U.S. District Court for the District of Oregon, have been consolidated in a single action entitled, "In re Merix Securities Litigation, Lead Case No. CV 04-826-MO." The court appointed a lead plaintiff, who filed a consolidated and amended class action complaint on Nov. 15, 2004. On March 3, 2005, the company filed a motion to dismiss the amended and consolidated complaint for failure to identify with sufficient specificity the statements that plaintiffs allege to have been false and why the statements were either false when made or material. On Sept. 15, 2005, the court dismissed the case, without prejudice, and gave the plaintiffs leave to amend their complaint. In November 2005, the lead plaintiff filed an amended complaint. The complaint, as amended, alleges that the defendants violated the federal securities laws by making certain alleged inaccurate and misleading statements in the prospectus used in connection with the January 2004 public offering of approximately $103.4 million of the company's common stock. In September 2006, the court dismissed that complaint with prejudice. The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit. In April 2008, the Ninth Circuit reversed the dismissal of the Second Amended Complaint. The company sought rehearing and a rehearing en banc, both of which were denied. The company obtained a stay of the mandate from the Ninth Circuit and will file a certiorari petition with the U.S. Supreme Court by Sept. 22, 2008. On Dec. 15, 2008, the Supreme Court denied the certiorari petition. The case has been remanded to the U.S. District Court for the District of Oregon. The plaintiffs seek unspecified damages, according to the company's April 8, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended Feb. 28, 2009. The suit is "Central Laborers Pension Fund v. Merix Corp. et al., Case No. 3:04-cv-00826-MO," filed in the U.S. District Court for the District of Oregon, Judge Michael W. Mosman, presiding. Representing the plaintiffs are: Gregory M. Castaldo, Esq. (gcastaldo@sbclasslaw.com) Stuart L. Berman, Esq. (sberman@sbclasslaw.com) Darren J. Check, Esq. (dcheck@sbclasslaw.com) Sean M. Handler, Esq. (shandler@sbclasslaw.com) Andrew L. Zivitz, Esq. (azivitz@sbclasslaw.com) Schiffrin & Barroway, LLP Three Bala Plaza East, Suite 400 Bala Cynwyd, PA 19004 Phone: 610-667-7706 Fax: 610-667-7056 - and - Lori G. Feldman, Esq. (lfeldman@milbergweiss.com) Milberg Weiss Bershad & Schulman, LLP 1001 Fourth Ave., Suite 2550 Seattle, WA 98154 Phone: 206-839-0730 Fax: 206-839-0728 Representing the defendants are: Richard L. Baum, Esq. (baumr@perkinscoie.com) Perkins Coie, LLP 1120 NW Couch St., 10th Floor Portland, OR 97209-4128 Phone: 503-727-2021 Fax: 503-727-2222 - and - Joseph E. Bringman, Esq. (jbringman@perkinscoie.com) Ronald L. Berenstain, Esq. (RBerenstain@perkinscoie.com) Douglas W. Greene, III, Esq. (DGreene@perkinscoie.com) Perkins Coie, LLP 1201 Third Ave., Suite 4800 Seattle, WA 98101-3099 Phone: 206-359-8501 206-359-8477 206-359-8613 Fax: 206-359-9000 206-359-9477 206-359-9613 NATIONAL MONEY: Comments on Litigation Trial in Toronto, Ontario ---------------------------------------------------------------- National Money Mart Company, a convenience financial service provider in Canada, issued the following statement on the first day of a class action trial in Toronto, Ontario: Money Mart says that it is a founding member of the Canadian Payday Loan Association (CPLA) that has spent years working with governments to implement important regulation that balances consumer protection with a viable industry. In October 2006, the Government of Canada determined that section 347 of the Criminal Code should be amended to exempt payday lenders who operate in provinces having legislation in place to regulate the industry. When former Justice Minister Victor Toews introduced Bill C-26 in Parliament to amend the section, the Department of Justice issued a press release acknowledging that section 347 was never designed to apply to short term loans and explained that section 347, "...is NOT a consumer protection tool." In March 2009, the Ontario Government set the maximum rate for payday loan in Ontario at $21 per $100. Money Mart employs more than 2,500 people. It just celebrated its 26th anniversary in Canada and has more than 461 store fronts. Money Mart asserts that its customers are educated, middle- income Canadians who borrow an average of $300 for approximately 10 days to cover unexpected expenses and that customers know the cost of borrowing and deliberately and knowingly choose a payday loan over other options such as overdraft, credit cards or lines of credit. This is clearly demonstrated in the largest-ever study of payday loan customers in Ontario (500 respondents) conducted in 2007 by Pollara and available at: http://www.cpla- acps.ca/english/mediastudies.php." For further information: Joanne Kearney, Mobile: (416) 804-5949, joanne.kearney@fleishman.ca NITROMED INC: Settlement of Merger Suit Pending Court Approval -------------------------------------------------------------- A stipulation of settlement of a purported class-action lawsuit relating to the proposed merger by and among Deerfield Private Design Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situations Fund, L.P., Deerfield Special Situations Fund International Limited, NTMD Parent Acquisition Corp., NTMD Acquisition Corp. and NitroMed, Inc., remains subject to court approval. On Feb. 12, 2009, a purported class action lawsuit relating to the merger was filed against NitroMed, each of its directors, its executive officer and Deerfield Management Company, L.P. and certain of its affiliates in Suffolk County Superior Court in Massachusetts. The lawsuit, "Mieczyslaw Stachnik et al. v. Kenneth Bate et al., Civil Action No. 09-0622-BLS-2," as amended, alleges, among other things, that the merger consideration to be paid to NitroMed stockholders in the merger is unfair and undervalues NitroMed. In addition, the complaint alleges that NitroMed's directors and its executive officer violated their fiduciary duties by, among other things, failing to maximize stockholder value, failing to engage in a fair sale process and failing to provide NitroMed stockholders with a proxy statement adequate to enable them to cast an informed vote on the proposed merger. NitroMed, its directors and its executive officer denied the allegations in the complaint. NitroMed, the other defendants and the plaintiffs entered into a memorandum of understanding dated as of March 31, 2009, regarding the settlement of the suit. In connection with the settlement, the parties agreed that NitroMed would make certain additional disclosures to its stockholders. Following the completion of certain confirmatory discovery by counsel to the plaintiffs, the parties entered into a stipulation of settlement. The stipulation of settlement is subject to customary conditions, including court approval. In addition, in connection with the settlement, the parties contemplate that plaintiffs' counsel will petition the court for an award of attorneys' fees and expenses not to exceed $250,000. The settlement costs, comprised of the attorneys' fees awarded to the plaintiffs' counsel and the costs incurred by NitroMed to defend the lawsuit, will be paid by NitroMed. NitroMed and Deerfield Management have agreed that NitroMed's net cash balance at closing will be reduced by $125,000 to account for the settlement costs and hence reduce the amount received by NitroMed stockholders in the merger. The settlement will not change any of the other terms of the merger or the merger agreement, according to the company's Current Report on Form 8-K filing with the U.S. Securities and Exchange Commission dated April 8, 2009. Nitromed, Inc. -- http://www.nitromed.com/-- is a maker of BiDil, which is indicated for the treatment of heart failure in self-identified black patients as an adjunct to standard therapies. BiDil is an orally administered fixed-dose combination of isosorbide dinitrate and hydralazine hydrochloride. BiDil is an orally administered medicine that is dosed three times daily. NORTHFIELD LABORATORIES: Consolidated Securities Suit Ongoing ------------------------------------------------------------- The consolidated securities fraud class-action lawsuit filed against Northfield Laboratories, Inc. in the U.S. District Court for the Northern District of Illinois is still at an early stage, according to the company's April 9, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended Feb. 28, 2009. Between March 17, 2006 and May 15, 2006, ten separate complaints were filed, each purporting to be on behalf of a class of company's stockholders, against Northfield and Dr. Steven A. Gould, its chief executive officer, and Richard DeWoskin, its former chief executive officer. Those putative class-action suits have been consolidated in a case pending in the U.S. District Court for the Northern District of Illinois. The consolidated amended class action complaint was filed on Sept. 8, 2006, and alleges, among other things, that during the period March 19, 2001 through March 20, 2006, the named defendants made or caused to be made a series of materially false or misleading statements and omissions about Northfield's elective surgery clinical trial and business prospects in violation of Section 10(b) of the U.S. Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder and Section 20(a) of the Exchange Act. The plaintiffs allege that those allegedly false and misleading statements and omissions caused the purported class to purchase shares of the company's common stock at artificially inflated prices. As relief, the complaint seeks, among other things, a declaration that the action be certified as a proper class action, unspecified compensatory damages (including interest) and payment of costs and expenses (including fees for legal counsel and experts). The putative class-action case is at an early stage and it is not possible at this time to predict the outcome of any of the matters or their potential effect, if any, on Northfield or the clinical development or future commercialization of PolyHeme. The Company and the individual defendants filed a motion to dismiss the complaint, and on Sept. 25, 2007, the court granted that motion, finding that the plaintiffs failed to state a claim. The court dismissed the complaint without prejudice and the plaintiffs have until Nov. 20, 2007 to file an amended complaint. On Jan. 22, 2008, the company and the individual defendants filed a motion to dismiss, and the briefing of that motion was completed on June 26, 2008. On Sept. 23, 2008, the Court denied the motion to dismiss, and on Dec. 5, 2008, the company and the individual defendants answered the Consolidated Second Amended Class Action Complaint. The plaintiffs have advised that they intend to file a motion seeking certification of a class. The case has proceeded into discovery and briefing of class certification issues. The suit is "Topaz Realty Corp., et al. v. Northfield Laboratories, Inc., et al., Case No. 06-CV-1493," filed in the U.S. District Court for the Northern District of Illinois under Judge George M. Marovich. Representing the plaintiffs are: Patrick Vincent Dahlstrom, Esq. Pomerantz Haudek Block Grossman & Gross LLP One North LaSalle Street, Suite 2225 Chicago, IL 60602-3908 Phone: (312) 377-1181 E-mail: pdahlstrom@pomlaw.com - and - Anthony F. Fata, Esq. Cafferty Faucher LLP 30 North LaSalle Street, Suite 3200 Chicago, IL 60602 E-mail: afata@caffertyfaucher.com Representing the defendants is: Ronald L. Marmer, Esq. Jenner & Block LLP 330 North Wabash Chicago, IL 60611 Phone: (312) 222-9350 E-mail: rmarmer@jenner.com OIL COMPANIES: Mass. Town Receives $17,870 From MTBE Settlement --------------------------------------------------------------- The Town of North Attleborough, Massachusetts received some settlement money from a statewide class-action suit related to contamination caused by a gasoline additive, Amy DeMelia of The Attleboro Sun Chronicle reports. New oil companies involved in the case recently reached a settlement for the case, which would mean that the town will receive nearly $17,870 in funding, according to The Attleboro Sun Chronicle report. The Attleboro Sun Chronicle reported that North Attleboro is among 80 communities that joined a class-action suit that alleged a gasoline additive has caused issues after seeping into municipal drinking water supplies. The chemical is methyl tertiary butyl ether - known as MTBE- an additive first put in gasoline during the 1980s in response to the U.S. Environmental Protection Agency's program to reduce air pollution. North Attleboro's wells tested for small amounts of the gasoline additive in 2001, but the amount detected was below the levels listed for concern in water safety guidelines, reports The Attleboro Sun Chronicle. In January 2009, the town received nearly $559,500 in settlement money from the litigation. The latest $17,870 in proceeds comes as new settlements are reached with additional oil companies, The Attleboro Sun Chronicle reported. QUARRY HILLS: Faces Lawsuit in N.C. Over Covenant Violations ------------------------------------------------------------ The owners of the Quarry Hills Golf Club, an Alamance County golf course is facing a purported class-action lawsuit for allegedly violating covenants meant to keep the property as an 18-hole golf course, Keren Rivas of The Burlington Times-News reports. The golf course began operating in Alamance County, North Carolina in 1970, when George Bason opened it as the Piedmont Crescent Country Club, according to The Burlington Times-News report. The Burlington Times-News reported that William and Virginia Mann bought it in April 1985 and renamed it the Quarry Hills Golf Club. At the time of the purchase, there were covenant restrictions placed on the property to ensure the property remained an 18-hole golf course. In the lawsuit, the plaintiffs argued that the 1985 deed and a subsequent 1995 declaration prohibited the land from being used for residential, manufacturing, agricultural or commercial purposes, reports The Burlington Times-News. ROCKIES REGION: Final Settlement of Suit v. PDC Okayed in April --------------------------------------------------------------- Final settlement of the consolidated class action lawsuits against Petroleum Development Corp. (PDC), the managing general partner of Rockies Region Private Limited Partnership, for underpayment of royalties, was approved on April 7, 2009. On May 29, 2007, a complaint was filed against PDC in Weld County, Colorado. The complaint represents a class action against PDC seeking compensation for alleged underpayment of royalties on leases in Colorado, resulting from the alleged miscalculation of costs to produce marketable gas. The case was moved to Federal Court in June 2007. A second similar Colorado class-action suit was filed against PDC on Dec. 3, 2007. On Jan. 28, 2008, the Court granted a motion to consolidate the two cases, and on Feb. 29, 2008, the Court approved a 90-day stay in the proceedings while the parties pursued mediation of the matter. Although the company was not named as a party in the suit, the lawsuit states that it relates to all wells operated by the Managing General Partner, which includes a majority of the Partnership's 38 wells in the Wattenberg field subject to the settlement. On Oct. 10, 2008, the court issued preliminary approval of the settlement agreement. The portion of the proposed settlement related to the company's wells for all periods through Dec. 31, 2007 is $74,412. In November 2008, the Managing General Partner paid into an escrow account, on behalf of the company, amounts due under the settlement. These amounts will be deducted from future company distributions. Notice of the settlement was mailed to members of the class action suit in the fourth quarter of 2008, and the final settlement was approved by the court at a hearing on April 7, 2009, according to the company's April 8, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Rockies Region Private Limited Partnership owns natural gas and oil wells located in Colorado and from the wells, it produces and sells gas and oil. The company is headquartered in Denver, Colo. SYMANTEC CORP: Aug. 28 Hearing Set for "Heverly" Suit Settlement ---------------------------------------------------------------- The Superior Court of Santa Clara County in California will hold a fairness hearing on Aug. 28, 2009 at 9:00 a.m. For the proposed settlement in the matter, "Bruce Heverly et al. v. Symantec Corp., Case No. 1-05-CV-053711." The court will hold the hearing Judge Jack Komar, Dept. 17 of the Superior Court of the State of California, Santa Clara County, 191 N. First St., San Jose, CA 95113. On Sept. 3, 2008, the Class Action Reporter reported that Symantec Corp. is facing a class-action complaint filed in the Superior Court of Santa Clara County in California alleging it sells Norton computer security products, has an unlawful policy of terminating subscription time of certain customers who purchased upgrades without providing a credit or refund for unused subscription time, and fails to disclose this policy. Examples of this software include: -- Norton AntiSpam, -- Norton Personal Firewall, -- Norton AntiVirus, -- Norton Internet Security, -- Norton SystemWorks, -- Norton Confidential and -- Norton 360. The plaintiffs claim that each class member purchased Norton computer security software which came with a subscription for regular "content updates," which keep the security software up to date. These updates are delivered by Symantec via online downloads through the LiveUpdate feature of the Norton software. As the subscription expiration date approaches, the Norton security software prompts the user to consider renewing their subscription for another term and also presents an opportunity to upgrade to a new product by making an online purchase. If the user then chooses to purchase an upgrade, the new subscription begins when the upgrade is installed, not when the existing subscription expires. Plaintiffs allege that the new subscription should begin when the existing subscription expires, and that Symantec unlawfully terminated subscription time without providing a credit or refund and without disclosing this policy. In February 2008, the representative plaintiffs have filed a Consolidated Second Amended Complaint which alleges: -- violation of the Consumers Legal Remedies Act, Cal. Civ. Code Section 1750 et seq., -- violation of the Unfair Competition Act, Cal. Bus. & Prof. Code Section 17200 et seq., -- violation of the False Advertising Law, Cal. Bus. & Prof. Code Section 17500 et seq., -- breach of contract, and -- breach of the covenant of good faith and fair dealing, money had and received, unjust enrichment and declaratory relief. On May 7, 2008, the Honorable Jack Komar of the Superior Court of Santa Clara County, California certified this case as a class action on behalf of persons and entities who purchased online upgrades of certain Norton antivirus and Internet security-type software products, the installation of which resulted in the uninstallation of another Norton subscription product prior to the expiration of that product's subscription. The Class consists of persons and entities who installed their upgrade product between Dec. 5, 2001 and April 11, 2008, but does not include those who purchased upgrades through Symantec's online store. The Court also certified a subclass consisting of: All members of the class who purchased online, primarily for personal, household or family purposes, a Symantec Subscription Product with a Stock Keeping Unit that designates the product as an upgrade, the installation of which resulted in the uninstallation of another Symantec Subscription Product prior to the expiration of that Product's subscription. Symantec denies these allegations and asserts that, at all times, its actions and business practices have been lawful and appropriate. The suit is "Bruce Heverly et al. v. Symantec Corp., Case No. 1- 05-CV-053711," filed in the Superior Court of Santa Clara County. For more details, contact: Heverly-Norton Settlement Administrator c/o Rust Consulting, Inc. P.O. Box 1181 Minneapolis, MN 55440-1181 Web site: http://www.heverly-nortoncase.com/ Michael Scott Green, Esq. Green & Pagano LLP 522 Route 18 North P.O. Box 428 East Brunswick, NJ 08816 Phone: 800-270-8695 e-mail: nortoncase@heverlylawyers.com Mark A. Chavez, Esq. Chavez & Gertler LLP 42 Miller Avenue Mill Valley, CA 94941 Phone: 800-270-8695 e-mail: nortoncase@heverlylawyers.com Michael H. Landis, Esq. Smolow & Landis 204 Two Neshaminy Interplex Trevose, PA 19053 Phone: 800-270-8695 e-mail: nortoncase@heverlylawyers.com C. Benjamin Nutley, Esq. Kendrick & Nutley 1055 E. Colorado Blvd., 5th Floor Pasadena, CA 91106 Phone: 800-270-8695 e-mail: nortoncase@heverlylawyers.com - and - Gary S. Graifman, Esq. Kantrowitz Goldhamer & Graifman, PC 747 Chestnut Ridge Road Chestnut Ridge, NY 10977 Phone: 800-270-8695 e-mail: nortoncase@heverlylawyers.com WRT ENERGY: June 8 Hearing Set for $1.8M Securities Suit Deal ------------------------------------------------------------- The U.S. District Court for the Southern District of New York will hold a fairness hearing on June 8, 2009, at 10:30 a.m. for the proposed $1,800,000 settlement in the matter, "In re WRT Energy Securities Litigation, Case Nos. 96-3610 and 96-3611." Filed on May 15, 1996, the lawsuit generally alleges that the WRT Energy Corp. and the individual defendants violated the U.S. Securities Exchange Act of 1934. Named as plaintiffs in the suit are Evelyn Lee, Ira Lee, Berniece B. Wright, Frank Amato, IRA Jeremiah Attard, Michael Attard, and Michael R. Nadler (Class Action Reporter, July 21, 2006). Listed as Class Members in the matter are all persons who purchased WRT's Senior Notes, commencing with the initial offering of the Senior Notes to the public in February 1995 through and including Oct. 27, 1995, and who suffered damages thereby. For more details, contact: In re WRT Energy Securities Litigation c/o Analytics Incorporated, Claims Administrator P.O. Box 2003 Chanhassen, MN 55317-2003 Phone: 1-866-233-0120 Web site: http://wrtenergysecuritieslitigation.com/ Richard H. Weiss, Esq. Milberg LLP One Penn Plaza New York, NY 10119-0165 Phone: (212) 594-5300 - and - David B. Kahn, Esq. David B. Kahn & Associates, Ltd. One Northfield Plaza Northfield, Illinois 60093 Phone: (847) 501-5083 ZUMIEZ INC: Announces Dismissal of Wash. Securities Litigation -------------------------------------------------------------- Zumiez, Inc., a specialty retailer of action sports related apparel, footwear, equipment and accessories, announced that the shareholder litigation involving Zumiez and its officers and directors has been dismissed. On March 30, 2009, the United States District Court for the Western District of Washington dismissed a securities class action brought against Zumiez and three of its officers and directors. The action was purportedly commenced on behalf of all individuals who purchased Zumiez stock from March 14, 2007 to January 4, 2008, and alleged that Zumiez and certain individuals made materially false or misleading statements during the proposed class period and engaged in insider trading. The defendants moved to dismiss all claims in October 2008. The Court issued its ruling on March 30, 2009 without oral argument, dismissing the case with prejudice. Following this ruling, a related shareholder derivative action, which was filed in the Superior Court for the State of Washington, Snohomish County, was voluntarily dismissed. Zumiez and its officers and directors were represented in the cases by Wilson Sonsini Goodrich & Rosati, PC. Rick Brooks, Chief Executive Officer of Zumiez, stated: "We are pleased to have these lawsuits behind us, and agree with the district court's decision to dismiss the securities case at the earliest possible stage, which was based on its finding that the claims in that case were 'flawed on every level.'" Zumiez, Inc. -- http://www.zumiez.com-- is a specialty retailer of action sports related apparel, footwear, equipment and accessories. Its stores cater to young men and women between ages 12-24, focusing on skateboarding, surfing, snowboarding, motocross and BMX. As of April 4, 2009, it operates 350 stores, which are primarily located in shopping malls. ZYNEX INC: CEO Responds to Allegations in Securities Fraud Suits ---------------------------------------------------------------- Zynex, Inc. (OTCBB:ZYXI), a provider of pain management systems and electrotherapy products for medical patients with functional disability, stated on April 27, 2009 its CEO views about pending class action lawsuits recently filed against Zynex and its two executive officers. As previously announced, the lawsuits allege, among other things, violations of the securities laws regarding its unaudited financial statements for the first three quarters of 2008, which were restated. Thomas Sandgaard, President and CEO of Zynex, commented: "Zynex believes that it has substantial factual and legal defenses to the lawsuits, which it intends to pursue vigorously. We believe that the restated financial statements for the quarters were the right thing to do. Zynex will continue to focus on maintaining and developing our business of supplying high quality electrotherapy products for patients." Zynex, Inc. -- http://www.zynexmed.com-- (founded in 1996) engineers, manufactures, markets and sells its own design of electrotherapy medical devices in two distinct markets: standard digital electrotherapy products for pain relief and pain management; and the NeuroMove(TM) for stroke and spinal cord injury (SCI) rehabilitation. Zynex's product lines are fully developed, FDA-cleared, commercially sold, and have been developed to uphold the Company's mission of improving the quality of life for patients suffering from impaired mobility due to stroke, spinal cord injury, or debilitating and chronic pain. ZYNEX INC: To Defend Mishkins' Suit Over Restatement of Finances ---------------------------------------------------------------- Zynex Inc. intends to defend a purported class-action lawsuit styled, "Marjorie and David Mishkin v. Zynex, Inc. et al." The lawsuit was filed against Zynex, its President and Chief Executive Officer and its Chief Financial Officer on April 6, 2009, in the U.S. District Court for the District of Colorado. The lawsuit refers to the April 1, 2009 announcement of Zynex that it will restate its unaudited financial statements for the first three quarters of 2008. The lawsuit purports to be a class action on behalf of purchasers of Zynex securities between May 21, 2008 and March 31, 2009. The lawsuit alleges, among other things, that the defendants violated Section 10 and Rule 10b-5 of the Securities Exchange Act of 1934 by making intentionally or recklessly untrue statements of material fact and/or failing to disclose material facts regarding the financial results and operating conditions for the first three quarters of 2008. The plaintiff asks for a determination of class action status, unspecified damages and costs of the legal action. Zynex has notified its directors and officers liability insurer of the claim, according to the company's Current Report on Form 8-K filing with the U.S. Securities and Exchange Commission dated April 8, 2009. Zynex Inc. -- http://www.zynexmed.com-- formerly Zynex Medical Holdings, Inc., engineers, manufactures, markets and sells its own design of United States Food and Drug Administration (FDA)- cleared medical devices into two distinct markets: standard electrotherapy products for pain relief/pain management, and the NeuroMove for stroke and spinal cord injury (SCI) rehabilitation. The FDA has cleared all of the company's products for sale in the United States and its products require a physician's prescription, authorization or order before they can be dispensed in the United States. Its Zynex-produced electrotherapy products, the IF8000, IF8100, TruWave and E-Wave, are marketed through physicians and therapists primarily by its independent contractor sales representatives. New Securities Fraud Cases OPPENHEIMER ROCHESTER: Dyer & Berens Files Securities Fraud Suit ---------------------------------------------------------------- Dyer & Berens LLP filed a class action lawsuit in the United States District Court for the District of Colorado on behalf of certain investors of Oppenheimer Rochester National Municipals (NASDAQ: ORNAX) (NASDAQ: ORNBX) (NASDAQ: ORNCX) offered by OppenheimerFunds, Inc. who purchased or held shares of the Fund in connection with its November 28, 2005, September 27, 2006, March 9, 2007 and November 28, 2007 offerings. The complaint charges OppenheimerFunds, the Rochester Fund and certain of its officers, directors and trustees with violations of federal securities laws. The complaint alleges that defendants marketed the Fund as being safer than disclosed in the Offerings while significantly increasing the Fund's leverage exposure and concealing risky investments in inverse floaters, revenue-type municipal securities including tobacco bonds, land secured or "dirt bonds" and airport bonds in hopes of higher returns. Beginning in February 2008, the Fund's shares declined when the auction-rate securities market, which had provided important debt financing for municipal bonds, froze. Defendants continued to conceal the Fund's exposure to these excessively risky investments until the time period between September 2008 and March 2009, when they began to disclose the serious deterioration of the Fund's portfolio. As a result, the Rochester Fund was one of the worst performers in the municipal bond fund market for 2008, losing 49% of its value for the year. According to the complaint, the true facts which were omitted from the Registration Statements/Prospectuses issued in connection with the Offerings were as follows: -- the Fund was no longer adhering to its objective of seeking high current income exempt from federal taxation, but in an effort to achieve greater yields was pursuing riskier instruments; -- the extent of the Fund's liquidity risk due to the illiquid nature of a large portion of the Fund's portfolios, including the Fund's investment in tobacco bonds; -- the extent to which the Fund's portfolio contained unrated securities; -- the Fund's internal controls were inadequate to prevent defendants from taking on excessive risk or to prevent them from improperly evaluating the credit quality of unrated securities; -- the extent of the Fund's risk exposure to derivatives and other high-risk instruments such as inverse floaters was concealed; and -- the extent of the Fund's leverage exposure was misstated. Plaintiff seeks to recover damages on behalf of Rochester Fund investors. A request for lead plaintiff status must satisfy certain criteria and be made on or before May 12, 2009. For more details, contact: Jeffrey A. Berens, Esq. (jeff@dyerberens.com) 682 Grant Street Denver, CO 80203 Dyer & Berens LLP Phone: (888) 300-3362 or (303) 861-1764 Web site: http://www.DyerBerens.com THEMA FUND: Johnson Bottini Files Securities Fraud Suit in N.Y. --------------------------------------------------------------- Johnson Bottini, LLP filed a class action lawsuit in the United States District Court for the Southern District of New York on behalf of their clients and a Class of investors consisting of all persons and entities anywhere in the world who invested in the Thema Fund (a sub fund of Thema International Fund plc), Primeo Select Fund, Primeo Executive Fund (sub funds of the Primeo Fund), Herald USA Fund, and Herald Luxemburg Fund ("collectively, the "Funds") between March 1, 2001 and December 10, 2008. The U.S. federal securities laws impose a deadline for the appointment of lead plaintiffs in class actions such as this case. The Complaint alleges violations of the U.S. federal securities laws (Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934) and also asserts claims under state law (negligent misrepresentation, breach of fiduciary duty, gross negligence, unjust enrichment, and aiding and abetting breach of fiduciary duty). The defendants in the case include the Funds, Bank Medici, Bank Austria, HSBC, PricewaterhouseCoopers LLP, Ernst & Young LLP, and the managers of the Funds. The Complaint alleges that the defendants caused harm to the Class by improperly funneling money to Bernard L. Madoff instead of properly investing money in the securities market -- as the Funds' prospectuses stated that defendants would do. Investors were never told their money was being invested with Madoff. Plaintiffs seek to recover damages on behalf of the class members. A request for lead plaintiff status must satisfy certain criteria and be made on or before May 4, 2009. For more information, contact: Frank A. Bottini, Esq. (frankb@johnsonbottini.com) Johnson Bottini, LLP Phone: 619-230-0063 ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent research, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel S. Senorin, Stephanie T. Umacob, Gracele D. Canilao, and Peter A. Chapman, Editors. Copyright 2009. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *