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/raid1/www/Hosts/bankrupt/CAR_Public/090727.mbx C L A S S A C T I O N R E P O R T E R Monday, July 27, 2009, Vol. 11, No. 146 Headlines ACCURAY INC: Faces Securities Fraud Litigation in California BOVIS LEND: Faces N.Y. Lawsuit for Failing to Pay Overtime Wages CAESAR'S PALACE: Faces Nev. Workers' Suit Over Second Hand Smoke DELL INC: Settles Gender Discrimination Lawsuit for $9.1M DENNY'S CORP: Faces N.J. Lawsuit Over Amount of Sodium in Meals EQ INDUSTRIAL: N.C. Court OKs Deal in Suit Over 2006 Explosion FIRST HEALTH: Fairness Hearing for "Coy" Deal Resumes in August HOME DEPOT: Faces Assistant Managers' Suit in Ill. for Overtime JEFFERSON COUNTY: PUD Faces Wash. Suit Over Taxing of Residents MERCK & CO: Reaches Deal in Lawsuit Over Schering-Plough Merger MORTON'S RESTAURANT: Announces Settlement of Wage, Hour Claims MOSES LAKE: Faces Washington Litigation Over Traffic Cameras NETFLIX INC: Faces Calif. Antitrust Litigation Over DVD Sales NEW YORK: Court Issues Ruling in Racial Bias Litigation v. FDNY PERPETUA HOLDINGS: Faces Ill. Suits Over Cemetery Desecration PHILIP MORRIS: Faces Kansas Litigation Over "Lights" Cigarettes PHILIP MORRIS: Faces Texas Litigation Over Light Cigarettes PRESSTEK INC: N.H. Court Approves "Sloman" Securities Suit Deal SCHERING-PLOUGH: Settles N.J. Litigation Over Merck & Co. Merger SOFTBRANDS INC: Levi & Korsinsky Files Suit Over Proposed Deal STATION CASINOS: Faces Ex-Employees' Nev. Suit Over Unpaid Wages UNITED PARCEL: Aug. 3 Trial Set for Franchisees' Suit in Calif. UNITED PARCEL: Third Circuit Reverses "Hohider" Certification New Securities Fraud Cases ACCURAY INC: Howard G. Smith Announces Securities Lawsuit Filing NOVEN PHARMACEUTICALS: Kendall Law Group Announces Suit Filing OPPENHEIMER AMT-FREE: Howard G. Smith Announces Lawsuit Filing ********* ACCURAY INC: Faces Securities Fraud Litigation in California ------------------------------------------------------------ An investor in Accuray, Inc. (NASDAQ: ARAY) has filed a proposed securities class action lawsuit in investor in the United States District Court for the Northern District of California on behalf of purchasers of Accuray Inc. common stock pursuant or traceable to Accuray's Initial Public Offering on or about February 7, 2007, as well as purchasers of Accuray's common stock between February 7, 2007 and August 19, 2008 over alleged violations of Federal Securities Laws by Accuray and others. Coughlin Stoia Geller Rudman & Robbins LLP announced that a class action has been commenced on behalf of an institutional investor in the United States District Court for the Northern District of California on behalf of purchasers of Accuray Inc. NASDAQ: ARAY) common stock pursuant or traceable to the Company's Initial Public Offering on or about February 7, 2007, as well as purchasers of the Company's common stock between February 7, 2007 and August 19, 2008, inclusive, seeking to pursue remedies under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (Class Action Reporter, July 24, 2009). The complaint charges Accuray and certain of its officers and directors with violations of the Securities Act and the Exchange Act. Accuray designs, develops, and sells the CyberKnife system, an image-guided robotic radio surgery system for the treatment of solid tumors. The CyberKnife system combines continuous image-guidance technology with a compact linear accelerator to deliver high doses of radiation to a tumor from different directions. The complaint alleges that, during the Class Period, defendants misrepresented and failed to disclose material information concerning the quality and realistic likelihood of fulfillment of contracts in Accuray's "backlog," a figure representing the direct revenue that Accuray expects to receive from the sale and servicing of the CyberKnife system. Specifically, defendants misrepresented and/or failed to disclose the following adverse facts: -- at the time of Accuray's IPO, Accuray changed its definition of backlog to include both contingent and non-contingent contracts; -- beginning in the fiscal quarter ending March 31, 2007 (at the time of the IPO), Accuray would report backlog that consisted of both contingent and non-contingent backlog, thereby increasing the total reported backlog; -- defendants materially overstated the amount of the Company's backlog; -- Accuray reported as backlog orders for the CyberKnife system that did not have a substantially high probability of being booked as revenue; -- a significant portion of commissions paid to CyberKnife sales personnel were earned prior to those potential sales being booked as revenue; -- Accuray sales personnel entered into contingent contracts for CyberKnife systems that did not have a substantially high probability of being booked as revenue; -- Accuray did not have adequate internal controls and procedures to ensure that potential orders reported as backlog had a substantially high probability of being booked as revenue; and -- based on the foregoing, defendants lacked a reasonable basis for their positive statements about the Company, its backlog, earnings, operations and prospects. On August 19, 2008, Accuray announced its fiscal fourth quarter and full year 2008 financial results for the period ended June 28, 2008 in a press release titled "Accuray Announces Results for the Fourth Quarter and Fiscal Year End 2008; 28 New Contracts Valued at $115.5 Million Signed in Fourth Quarter." That same day, Accuray held a conference call with analysts and reiterated the financial results in the press release and revealed that Accuray removed another $39 million from backlog. Thus, Accuray removed approximately $127 million in backlog during the last three quarters of fiscal 2008. Plaintiff seeks to recover damages on behalf of all purchasers of Accuray common stock during the Class Period, as well as purchasers of Accuray common stock pursuant and/or traceable to the IPO on or about February 7, 2007. For more details, contact: Darren J. Robbins, Esq. (djr@csgrr.com) Coughlin Stoia Geller Rudman & Robbins LLP Phone: 800-449-4900 or 619-231-1058 Web site http://www.csgrr.com/cases/accuray/ BOVIS LEND: Faces N.Y. Lawsuit for Failing to Pay Overtime Wages ---------------------------------------------------------------- A federal lawsuit alleges that Bovis Lend Lease, Inc. and Bovis Lend Lease LMB, Inc., managers of many of New York City's famous construction projects, including the Mets' Citi Field and the 9/11 Memorial at Ground Zero, did not pay workers overtime wages in violation of the federal Fair Labor Standards Act (FLSA), the New York Labor Law (NYLL), and the New Jersey Wage and Hour Law (NJWHL), according to Outten & Golden LLP. Renee Sewell, a former employee from Hoboken, N.J. who worked at Bovis' work sites in New York City and New Jersey, filed suit on Thursday in New York federal court on behalf of herself and other similarly situated employees. The Complaint alleges that Bovis misclassified Ms. Sewell and other similarly situated employees as exempt from the overtime requirements of the FLSA, NYLL, and NJWHL, and failed to pay them overtime for the hours they worked over 40 during many workweeks. Attorneys Adam T. Klein, Justin M. Swartz, Jack A. Raisner, and Rachel M. Bien, of Outten & Golden LLP in New York, represent Ms. Sewell. They will seek to have the lawsuit certified as a class action that includes similarly situated Assistant Project Managers, Project Engineers, and other salaried employees below the level of "Project Manager" with different titles who performed similar duties to Ms. Sewell. Rachel M. Bien, of Outten & Golden LLP, stated, "While Bovis benefited from major construction contracts, we allege that it deprived workers, who worked long hours performing low- level construction management services at its work sites, of the overtime premium pay to which the law entitles them." The lawsuit seeks to recover unpaid wages, attorneys' fees and costs, interest, and liquidated damages. The case is "Sewell, et al., v. Bovis Lend Lease, Inc., et al.," (Southern District of New York, Case No. 09-6548). For more details, contact: Adam T. Klein, Esq. Jack A. Raisner, Esq. Rachel Bien, Esq. Outten & Golden LLP New York, NY Phone: 212.245.1000 Web site: http://www.outtengolden.com CAESAR'S PALACE: Faces Nev. Workers' Suit Over Second Hand Smoke ---------------------------------------------------------------- A class action lawsuit filed in Nevada federal court seeks to protect Caesar's Palace Hotel and Casino employees from the effects of second-hand smoke. The suit alleges that Caesar's Palace is failing to provide a safe work environment for its employees. "We are not asking that Caesar's Palace become smoke free," says Jay Edelson, one of the attorneys who filed the lawsuit. "They must take steps to protect the health of their employees. That's reasonable and it's humane." It is well established that second-hand smoke is a health risk to non-smokers. The risks are exacerbated for employees at Caesar's Palace, where smoking is not only permitted 24 hours a day, seven days a week, but is also encouraged. Cigarettes are sold, and in some cases given away, to gamblers on the casino floor. Some casinos in Las Vegas have taken steps to protect their employees from second-hand smoke. Not only has Caesars done nothing, the suit alleges, but the problem has gotten worse since Harrah's Entertainment, Inc. took over operations at Caesar's Palace. When that happened, non-smoking gaming areas were allegedly removed from the casino floor. The suit claims that employees are also not allowed to request that customers move their ashtrays, or blow smoke away from the tables. The suit further claims employees that complain about the smoke risk losing their jobs. A recent study by the National Institute of Occupational Safety and Health of three Las Vegas Casinos, including Caesar's Palace, found that employees are continually exposed to the same cancer causing chemicals that smokers inhale, and that these chemicals exist in the bloodstreams of employees working in the gaming area of Caesar's Palace to a greater degree than other employees. The suit is brought on behalf of all employees at Caesar's Palace by Tomo Stephens, a former table dealer at Caesars for twenty years. Ms. Stephens was found to have developed pre- cancerous cells in her stomach and was warned by her doctor that if she did not quit working she was at risk of developing stomach cancer. Ms. Stephens was provided no severance nor even a sympathy call after informing Caesars' of her need to resign. Due to the loss of income, her house is facing foreclosure. The suit asks the court to require that Caesar's Palace take steps to protect its employees, including installing ventilation systems that minimize second-hand smoke, designating certain sections as non-smoking, and accommodating employees who are adversely affected by second-hand smoke. A copy of the lawsuit is available free of charge at: http://ResearchArchives.com/t/s?3fe9 For more details, contact: KamberEdelson, LLC Phone: 1-312-589-6370 or 1-866-354-3015 Fax: 1-312-589-6378 Web site: http://www.kamberedelson.com/Edelson.html DELL INC: Settles Gender Discrimination Lawsuit for $9.1M --------------------------------------------------------- Dell, Inc. (NASDAQ:DELL) said on July 24, 2009 that it has agreed to settle a federal gender-discrimination class action lawsuit for $9.1 million, according to an AP report. The class is defined as all women employed by Dell for at least one day at C1 through D3 level positions between Feb. 14, 2007, and Dec. 31, 2008. They will receive $5.6 million, and the remaining $3.5 million will be used to raise the salaries of females working in those positions to match those of their male counterparts after Dell conducts a review of salaries, The Associated Press reported. DENNY'S CORP: Faces N.J. Lawsuit Over Amount of Sodium in Meals --------------------------------------------------------------- Most Denny's Corp. meals are dangerously high in sodium, putting the restaurant chain's customers at greater risk of high blood pressure, heart attack and stroke, according to a class action lawsuit filed on July 23, 2009 by a New Jersey man with the support of the Center for Science in the Public Interest (CSPI). The lawsuit was filed in Superior Court of New Jersey in Middlesex County, and seeks to compel Denny's to disclose on menus the amount of sodium in each of its meals and to place a notice on its menus warning about high sodium levels. CSPI is working with the New Jersey firms of Galex Wolf, LLC and Williams Cuker Berezofsky. Most Americans should consume no more than 1,500 milligrams of sodium per day, according to the Centers for Disease Control and Prevention. But at Denny's, the great majority of its meals contain more, and in some cases, several times more. Some meals at Denny's provide more than 4,000 or 5,000 mg of sodium-more than most adults should consume in three days. Diets high in sodium are a major cause of high blood pressure, which in turn is a major cause of heart disease and stroke, the first- and third-leading causes of death in the United States. "Denny's is slowly sickening its customers," said CSPI executive director Michael F. Jacobson. "For those Americans who should be most careful about limiting their sodium, such as people middle-aged and older, African-Americans, or people with existing high blood pressure, it's dangerous to eat at Denny's. Denny's customers deserve to be warned about the considerable health risk posed by many of these meals." The plaintiff, Nick DeBenedetto, is a 48-year-old resident of Tinton Falls, NJ, who has eaten for many years at Denny's restaurants in East Brunswick and Brick, NJ. DeBenedetto takes a prescription medication to control his high blood pressure and at home does not cook with salt or use the salt shaker. Some of his favorite Denny's items, such as Moons Over My Hammy or the Super Bird turkey sandwich, contain far more than 1,500 mg of sodium-even without soup, salad, fried onion rings, or other side dishes. "I was astonished-I mean, literally floored-to find that these simple sandwiches have more salt than someone in my condition should have in a whole day," DeBenedetto said. "It's as if Denny's is stacking the deck against people like me. I never would have selected those items had I known." Moons Over My Hammy, a ham, egg, and cheese sandwich, has 2,580 mg of sodium by itself-more than even a healthy young person should consume in a day. It's served with hash browns (adding 650 mg of sodium) or grits (an additional 840 mg). The Super Bird sandwich, served with regular French fries, has 2,610 mg of sodium-more than twice what someone with high blood pressure should consume in a day. Denny's Meat Lover's Scramble, which has two eggs with chopped bacon, diced ham, crumbled sausage, Cheddar cheese, plus two bacon strips, two sausage links, hash browns, and two pancakes has 5,690 mg sodium, or 379 percent of the advised daily limit. A full meal at Denny's consisting of a bowl of clam chowder, a Spicy Buffalo Chicken Melt, and a side of seasoned fries contains an alarmingly high 6,700 mg of sodium. It's a big meal, to be sure, with about 1,700 calories. But that's more sodium than what 70 percent of Americans should consume in four and a half days. Even many of the smaller meals advertised for children and seniors have inappropriately high sodium levels. Many health experts consider high dietary sodium levels to be one of the nation's top health threats. Dr. Stephen Havas, adjunct professor of preventive medicine at Northwestern University's Feinberg School of Medicine, says that reducing the sodium content of packaged and restaurant foods by half would save at least 150,000 lives per year. For some people, particularly Denny's elderly patrons, getting several days' worth of sodium in a single meal might be enough to trigger congestive heart failure. "As a physician, I have grave concerns about the sodium levels at Denny's, and grave concerns about an elderly person or someone with hypertension eating even one such meal," Havas said. "The body can have a hard time getting rid of that much salt, potentially leading to fluid retention and accumulation in the lungs. Consuming that much sodium can have severe consequences." Denny's describes itself as the largest full-service family restaurant in the United States, with more than 1,500 restaurants and annual sales of $2.4 billion. "By concealing an important material fact about its products-namely, that that these foods have disease-promoting levels of sodium-Denny's is failing its responsibility to its customers and is in violation of the laws of New Jersey and several other states," said CSPI litigation director Steve Gardner. Denny's and CSPI had been in private negotiations over sodium, but those talks ended earlier this year. Shortly thereafter, the chain made small sodium reductions in a handful of items, like cheese sauce, shrimp skewers and kids' meals, but the chain did not make the kind of broad sodium reductions or menu disclosures urged by CSPI. CSPI's litigation department has, since its founding in 2004, sued a number of leading national food companies and has secured agreements improving food labeling, marketing, or product formulation with Anheuser Busch, Frito-Lay, Kellogg, KFC, Kraft, Sara Lee and other companies. CSPI's litigation activities helped spur the removal of artificial trans fat from restaurant food and helped return millions of dollars to consumers from makers of the dietary supplement Airborne. The lawsuit filed on July 23, 2009 against Denny's is CSPI's first sodium-related lawsuit against a food company. Separately, CSPI has petitioned the Food and Drug Administration to regulate salt as a food additive and to restrict sodium levels in various categories of food. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?3fee For more details, contact: Williams Cuker Berezofsky Woodland Falls Corporate Center 210 Lake Drive East Suite 101 Cherry Hill, NJ 08002 Phone: 856-667-0500 Fax: 856-667-5133 Web site: http://www.wcblegal.com/ - and - Galex Wolf LLC 1520 U.S. Hwy 130, Ste 101 North Brunswick, NJ 08902 Phone: 732-257-0550 Fax: 732-257-5654 e-mail: info@galexwolf.com Web site: http://www.galexwolf.com/ EQ INDUSTRIAL: N.C. Court OKs Deal in Suit Over 2006 Explosion -------------------------------------------------------------- The U.S. District Court for the Eastern District of North Carolina approved a preliminary settlement that would compensate residents and businesses that evacuated following the explosion at a hazardous waste warehouse in Apex, North Carolina three years ago, News & Observer reports. As many as 17,000 residents were either forced or encouraged to leave their homes after the EQ Industrial Services warehouse near the center of town exploded on an October evening in 2006, according to News & Observer. Residents and businesses in the evacuation zones will be given a choice of objecting to the settlement or accepting the payments that it offers, said Robert Zaytoun, Esq., one of the lawyers who brought the class-action suit against EQ and two other companies. A hearing on the fairness of the settlement is scheduled for Oct. 6, 2009, News & Observer reported. Under the settlement, the companies have agreed to pay each household that evacuated $750 to compensate for expenses and their trouble. Businesses that were forced to close during the two-day evacuation period could receive up to $2,200. The settlement totals $7.85 million, reports News & Observer. EQ Industrial Services and EQ Holding Co. are facing a class- action lawsuit filed in the U.S. District Court for the Eastern District of North Carolina on behalf of thousands of individuals and businesses who suffered damages due to the explosion of a chemical plant owned by the companies in Apex, North Carolina (Class Action Reporter, Oct. 10, 2006). The suit was filed by the law firms Parker & Waichman, LLP, Greg Jones & Associates, PA, Neblett, Beard Arsenault, Becnel Law Firm, LLC & Law Offices of Ronnie G. Penton. It alleges that the explosion and massive fire at the facility was a result of the company's negligence, which needlessly endangered the safety of thousands of people, damaged property and interrupted business activity. The lawsuit alleges that EQ's negligent actions caused a massive chemical explosion, resulting in chlorine and other hazardous materials to enter the air and surrounding community. Chlorine gas is highly toxic and was used as a chemical weapon during World War I. Residents and businesses in Apex, North Carolina, and surrounding areas, suffered injuries and damages, and will continue to suffer substantial losses into the future. The suit seeks remedies for claims involving personal injury, property damage and business interruption. On Oct. 5, 2006, a chemical explosion occurred at EQ's waste storage plant in Apex, North Carolina causing a fire that forced the evacuation of thousands of nearby residents. EQ Industrial Services and EQ Holding Company were previously warned about unsafe conditions at the facility. EQ was cited and fined in March 2006 for violating North Carolina regulatory waste regulations due to its failure to properly contain hazardous waste materials on its property. Plant explosions are nothing new to EQ; in August 2005, another plant run by Environmental Quality Co., just outside of Detroit in Romulus, Michigan, burst into flames, forcing 2000 residents to evacuate. The suit is captioned, "Beaulieu v. EQ Industrial Services, Inc., et al, Case No. 5:2006cv00400," which was filed in the U.S. District Court for the Eastern District of North Carolina. For more details, contact: Zaytoun Law Firm 510 Glenwood Avenue, Suite 301 Raleigh, NC 27603 Phone: (919) 832-6690 Fax: (919) 831-4793 e-mail: info@zaytounlaw.com Web site: http://www.zaytounlaw.com/ FIRST HEALTH: Fairness Hearing for "Coy" Deal Resumes in August --------------------------------------------------------------- A fairness hearing for the proposed settlement in a class-action case against First Health Insurance Co. will resume in August, Amelia Flood of The St. Clair Record reports. Amelia Flood of The St. Clair Record previously reported that Judge Daniel Stack of the Madison County Circuit Court has reset a fairness hearing for the settlement in the matter, "Richard C. Coy, D.C. d/b/a Coy Chiropractic Health Center, P.C., and Lawrence Shipley, D.C., v. CCN Managed Care, Inc. and First Health Group Corp., Circuit Court of Madison County, Illinois, Case No. 04-L-1055," after it became clear that the judge's July 15, 2009 docket was overloaded (Class Action Reporter, July 17, 2009). Judge Stack essentially decided that a jammed asbestos docket had to take precedence over the fairness hearing, according to The St. Clair Record reports. Previously, The St. Clair Record reported that Judge Stack moved to continue the fairness hearing over the proposed settlement in the matter to July 15, 2009 (Class Action Reporter, July 14, 2009). After three hours of argument at a fairness hearing held on May 26, 2009, Judge Stack told attorneys, "My brain hurts." He added, "I've had just about all I can take," according to The St. Clair Record report (Class Action Reporter, May 29, 2009). Judge Stack was referring to arguments over the settlement of a suit against First Health Insurance Co. While both parties reached a settlement back in 2008, the settlement has yet to be approved due to an objection filed by a class member with a similar lawsuit pending in St. Clair County, The St. Clair Record reported. The judge has continued the hearing until July 15 at 10 a.m. He will hear the remainder of the objector's arguments and responses from plaintiff and defense counsel, reports The St. Clair Record. Previously, a fairness hearing is set for May 26, 2009 to determine whether a charitable contribution of more than $1.2 million is a fair end to a 2004 chiropractor class-action suit against insurer First Health Group Corp. over claims adjustments (Class Action Reporter, May 26, 2009). It was previously reported that the Circuit Court of the Third Judicial District, Madison County, Illinois, will hold a fairness hearing on May 26, 2009 at 1:30 p.m. for the proposed settlement in the purported class-action lawsuit captioned, "Richard C. Coy, D.C. d/b/a Coy Chiropractic Health Center, P.C., and Lawrence Shipley, D.C., v. CCN Managed Care, Inc. and First Health Group Corp., Circuit Court of Madison County, Illinois, Case No. 04-L-1055," (Class Action Reporter, April 6, 2009). This lawsuit was filed Sept. 24, 2004. In the suit, plaintiffs claim that CCN Managed Care, Inc. (f/k/a Community Care Network, Inc.), and First Health Group Corp., (collectively First Health), operated Preferred Provider Organization (PPO) networks through which healthcare payors improperly discounted the bills of Illinois healthcare providers who treated workers' compensation claimants and Illinois automobile accident policy claimants. Granite City chiropractor Lawrence Shipley and Glen Carbon chiropractor Richard Coy settled the class-action suit against First Health in Madison County in January, reports The St. Clair Record. In the settlement, First Health did not admit to any wrongdoing. It was to give $1.25 million to a charity. The company would pay $650,000 in attorneys' fees and costs to Wood River attorney Brad Lakin's law firm and a $10,000 incentive award to the class representatives, according to The St. Clair Record report. For more details, contact: LakinChapman, LLC 300 Evans Ave, PO Box 229, Wood River, IL Phone: 618-254-1127 e-mail: ppo.classaction@lakinchapman.com Web site: http://www.lakinchapman.com - and - PPO Settlement Administrator PO Box 1971 Fairbault MN 55021-6167 Phone: 1-866-680-6562 Web site: http://www.pposettlements.com HOME DEPOT: Faces Assistant Managers' Suit in Ill. for Overtime --------------------------------------------------------------- Home Depot, Inc. faces a purported class-action lawsuit filed by a group of former employees who claim the retailer did not pay overtime wages for three years to its assistant managers at Illinois stores, Bridget Freeland of The Courthouse News Service reports. The former employees who filed the lawsuit (Civil Action No. 09CH2476) are Gary Ottaviano, Cruz Plaza and Jenny Macias. Their lead counsel is Mark Miller, Esq. with Wexler Wallace and Lee Squitieri, Esq. with Squitieri & Fearon in New York, N.Y., according to The Courthouse News Service. Alexandria Sage of Reuters reported that the lawsuit was filed on July 21, 2009 in the Circuit Court of Cook County, Illinois, seeks class-action status. It accuses Home Depot of deliberately misclassifying the plaintiffs as "exempt" from overtime, which is paid to workers after 40 hours per week (Class Action Reporter, July 23, 2009). The plaintiffs claim that they were unlawfully deprived of wages when Home Depot required them to work at least 55 hours per week and that they were not paid time and a half for time over 40 hours, according to Reuters. The suit accused Home Depot of having a policy of terminating assistant store managers and reducing their salaries if they do not work the eleven hour minimum shift for which assistant managers are scheduled. The alleged practice is widespread at Home Depot and that it affects all of the company's assistant managers in Illinois, where, it added, some 57 Home Depot stores operated in the past three years, Reuters reported. The complaint is seeking past unpaid wages and punitive damages, reports Reuters. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?3fec For more details, contact: Wexler Wallace LLP 55 West Monroe St. Ste. 3300 Chicago, IL 60603 Phone: 312.346.2222 Fax: 312.346.0022 e-mail: info@wexlerwallace.com Web site: http://www.wexlerwallace.com/ - and - Squitieri & Fearon, LLP 32 East 57th Street 12th Floor New York, NY 10022 Phone: 212-421-6492 Fax: 212-421-6553 e-mail: info@sfclasslaw.com Web site: http://www.sfclasslaw.com/ JEFFERSON COUNTY: PUD Faces Wash. Suit Over Taxing of Residents --------------------------------------------------------------- Jefferson County Public Utility District No. 1 is facing a purported class-action lawsuit filed on behalf of the residents of Port Townsend, Washington, Fred Obee of The Port Townsend Leader reports. The lawsuit claims that for all these years, the PUD has been illegally taxing city residents. If successful, the suit would refund with interest the taxes Port Townsend residents have paid to the PUD over the last three years, according to The Port Townsend Leader. The named plaintiffs in the class-action suit are Ted Shoulberg and Charles Haniford, two Port Townsend property owners. Mr. Haniford manages rental properties in Port Townsend, and Mr. Shoulberg is a former Port Townsend City Council member, reports The Port Townsend Leader. The lawsuit was filed after Messrs. Shoulberg and Haniford requested that the attorney general's office institute an action against the PUD. The attorney general's office refused that request on June 30, 2009, The Port Townsend Leader reported. MERCK & CO: Reaches Deal in Lawsuit Over Schering-Plough Merger --------------------------------------------------------------- Merck & Co., Inc. announced a proposed settlement, subject to Court approval, to resolve litigation challenging the planned merger between Merck and Schering-Plough Corporation and seeking other forms of relief. The consolidated class action lawsuit, which was noted in Merck's June 25, 2009, definitive merger proxy statement/prospectus, was filed in the Chancery Division of the Superior Court of New Jersey in Hunterdon County and named Merck, its directors and Schering-Plough as defendants. The proposed settlement references additional disclosures made by Merck and Schering-Plough related to the proposed merger, including information about Merck's financial advisor (J.P. Morgan), its fairness opinion and certain other details. All of these additional disclosures already have been made in the joint proxy/prospectus filed with the Securities and Exchange Commission (SEC). Under the proposed settlement, no damages would be paid by Merck or Schering-Plough. In addition, the parties have agreed that plaintiffs' counsel may apply to the Court for an award of attorneys' fees and costs to be paid by Merck. Merck said the proposed settlement is not in any way an admission of any wrongdoing or liability in connection with plaintiffs' allegations. The company said it agreed to settle the suit in order to avoid the further costs and inherent uncertainty of litigation. This settlement, if approved by the court, and the separate settlement announced by Schering-Plough, will resolve and release all claims that were or could have been brought by any shareholder of Merck or Schering-Plough challenging any aspect of the proposed merger, including any merger disclosure claims. MORTON'S RESTAURANT: Announces Settlement of Wage, Hour Claims -------------------------------------------------------------- Morton's Restaurant Group, Inc. (NYSE: MRT) announced that agreements have been reached to settle certain wage and hour claims against the Company and certain of its subsidiaries. The settlements involve claims filed against the Company as far back as 2003 and cover all of the remaining wage and hour litigation pending against the Company and its subsidiaries, including a nationwide class action filed in 2005. While the Company and its subsidiaries deny allegations underlying the claims, they have agreed to the settlements to avoid additional legal fees, uncertainty surrounding the litigation and the management time that would have been devoted to continued litigation. The settlements are subject to respective arbitrator and court approvals. The settlements involve the payments of cash over up to a four year period as well as the issuance of preferred stock by the Company. The preferred stock, which will have an aggregate liquidation preference of $6 million, will be issued in connection with the settlement of the nationwide class action within thirty days following court approval of such settlement (but not prior to January 1, 2010) and after two years from the date of its issuance may be converted into up to 1.2 million shares of the Company's common stock (or a lesser number of shares depending on the conversion price computed at the time the court approves the settlement). The Company will have the right to buy back the preferred stock at a price equal to its liquidation preference at any time prior to its conversion. As a result of the settlements and other labor matters, a one-time charge of approximately $13.4 million pre-tax and approximately $8.5 million after-tax, or approximately $0.53 per diluted share, will be recorded in the fiscal second quarter ended July 5, 2009. "We believe resolving the wage and hour litigation that has been ongoing for several years is in the best interest of our Company, our shareholders and our employees," said Scott Levin, Senior Vice President and General Counsel, Morton's Restaurant Group, Inc. "Eliminating the distraction and expense of this litigation will allow our management team and employees to focus on what we do best---offering our guests warm, genuine hospitality and 'The Best Steak Anywhere'." The Company expects to announce its second quarter results in early August 2009. Morton's Restaurant Group, Inc. -- http://www.mortons.com-- is the world's largest operator of company-owned upscale steakhouses. Morton's steakhouses have remained true to our founders' original vision of combining generous portions of high quality food prepared to exacting standards with exceptional service in an enjoyable dining environment. As of July 23, 2009, the Company owned and operated 78 Morton's steakhouses located in 66 cities in 27 states, Puerto Rico and six international locations (Hong Kong, Macau, Mexico City, Singapore, Toronto and Vancouver), as well as three Italian restaurants. MOSES LAKE: Faces Washington Litigation Over Traffic Cameras ------------------------------------------------------------ Moses Lake, Washington is facing a purported class-action lawsuit that was filed by a local attorney who is challenging the city's use of cameras for traffic enforcement, The Tri-City Herald reports. Attorney Harold Moberg, Esq. told The Tri-City Herald that 6,000 to 12,000 people will be notified that they are eligible to join the lawsuit. The class-action group includes all drivers who received city citations as a result of camera enforcement in the past three years and paid their fines. Mr. Moberg filed suit earlier this July in Grant County Superior Court, and the class action was certified on July 17, 2009. He pursued the class-action suit after initially defending a single client, Specialty Welding, in Moses Lake Municipal Court. That case still is open, according to The Tri-City Herald. The Tri-City Herald reported that Moses Lake uses cameras at two intersections to detect red-light violations and uses cameras near the high school to enforce a speed zone. Redflex Traffic Systems of Scottsdale, Ariz., installed the system and monitors it. For more details, contact: Harold J Moberg, Esq. 607 Riviera Ave Moses Lake, WA Phone: (509) 765-1699 NETFLIX INC: Faces Calif. Antitrust Litigation Over DVD Sales ------------------------------------------------------------- Netflix, Inc., Wal-Mart Stores Inc., and Walmart.com USA LLC are facing a purported class-action lawsuit claiming that they colluded to divide the rental and retail markets for DVDs, thus driving up Netflix subscription prices allowing Wal-Mart to overcharge for DVD sales, Law360 reports. The suit was filed on May 11, 2009 in the U.S. District Court for the Northern District of California by Carla Spears, under the caption, "Spears v. Netflix, Inc., Case No. 3:2009-cv- 02064." An amended complaint was filed on July 22, 2009, according to Law360. For more details, contact: Paul William Rebein The Rebein Law Firm, PLLC 500 E. Kennedy Blvd. Suite 100 Tampa, FL 33602 Phone: 813-356-0567 Fax: 813-902-6538 e-mail: paul@rebeinlaw.com NEW YORK: Court Issues Ruling in Racial Bias Litigation v. FDNY --------------------------------------------------------------- The U.S. District Court for the Eastern District of New York ruled that the Fire Department of New York (FDNY) used recruitment exams that discriminated against blacks and Hispanics, Soterios Johnson of WNYC reports. The ruling is the result of a lawsuit filed against the city by a black firefighters' organization and the U.S. Department of Justice. It found the predominantly white FDNY discriminated against minority firefighter candidates in written exams given between 1999 and 2007, according to WNYC. The New York Daily News previously reported that The Vulcan Society of the New York's fire department has joined a class- action lawsuit against the City of New York over alleged racial discrimination in the department's hiring practices (Class Action Reporter, July 20, 2007). In May 2007, the U.S. Department of Justice filed in the U.S. District Court for the Eastern District of New York a suit against the city charging that two written exams administered by the Fired Department of New York (FDNY) in 1999 and 2002 were unfair to black and Hispanic candidates. The suit seeks to represent approximately 335 black employees who "were and continue to be affected by the fact that they were delayed and impeded in their ability to obtain employment with the FDNY." The suit is "United States of America v. City of New York, Case No. 1:07-cv-02067-NGG-RLM," filed in the U.S. District Court for the Eastern District of New York, under Judge Nicholas G. Garaufis, with referral to Judge Roanne L. Mann. Representing plaintiffs are: Allyson L. Belovin, Esq. Levy Ratner, P.C. 80 Eighth Avenue, 8th Floor New York, NY 10011 Phone: 212-627-8100 Fax: 212-627-8182 e-mail: abelovin@lrbpc.com Clare F. Geller, Esq. U.S. Department of Justice 601 D Street, Nw, Room 4926 Washington, DC 20004 Phone: (202)353-1817 Fax: (202)514-1005 e-mail: clare.geller@usdoj.gov - and - Michael J. Goldberger, Esq. United States Attorneys Office Eastern District of New York One Pierrepont Plaza, 14th Floor Brooklyn, NY 11201 Phone: (718)254-6052 Fax: (718)254-6083 e-mail: Michael.Goldberger@usdoj.gov Representing defendants are: Michael N. Block, Esq. Sullivan Papain Block McGrath & Cannavo P.C 120 Broadway- 18th Floor New York, NY 10038 Phone: 212-732-9000 Fax: 212-266-4148 e-mail: mblock@triallaw1.com - and - Georgia Mary Pestana, Esq. Office of the Corporation Counsel 100 Church Street New York, NY 10007 Phone: 212-788-0862 Fax: 212-788-0940 e-mail: gpestana@law.nyc.gov PERPETUA HOLDINGS: Faces Ill. Suits Over Cemetery Desecration ------------------------------------------------------------- Perpetua Holdings of Illinois, the owners of Burr Oak Cemetery in Alsip, are facing three purported class-action lawsuits in Illinois that was filed on behalf of people who have relatives buried at the suburban Chicago cemetery where bodies were allegedly removed from graves and dumped so that the plots could be resold, The Chicago Sun-Times reports. The Associated Press reported that a class-action lawsuit was filed against Burr Oak Cemetery in Alsip, and its owners (Class Action Reporter, July 14, 2009). The families of twenty-one people buried at Burr Ridge Cemetery are also suing four workers accused of desecrating their relatives' graves, The Associated Press reported. The class-action suit was filed on July 10, 2009 in Cook County Circuit Court in Illinois by Bobbie Sanders, according to The Associated Press. PHILIP MORRIS: Faces Kansas Litigation Over "Lights" Cigarettes --------------------------------------------------------------- Philip Morris USA, Inc. and its parent company, Altria Group, Inc. are facing a purported class-action lawsuit filed by a pair of Kansas City-area residents alleging deception in the sale of so-called "light" cigarettes, The Kansas City Business Journal reports. The suit was filed on July 2, 2009 in the U.S. District Court for the District of Kansas by Allison E. Moos and Robert J. Valencia, under the caption, "Moos et al v. Philip Morris USA Inc et al., Case No. 2:2009-cv-02383." The suit alleges that the defendants sold "light" and "ultra- light" cigarettes to give consumers the impression that they were smoking products with less tar and nicotine, according to The Kansas City Business Journal Both plaintiffs, represented by Burgess & Lamb PC, said they started smoking Marlboro Lights or Ultra-Lights thinking that was an alternative to quitting smoking. Armed with the knowledge now that such cigarettes are not necessarily less harmful, the plaintiffs said they still were unable to quit smoking, citing the products' addictive nature, reports The Kansas City Business Journal. Kansas City Business Journal reported that the plaintiffs charge both companies with, among other things, unjust enrichment, negligence, and violating the Kansas Consumer Protection Act. For more details, contact: Mitchell L. Burgess, Esq. (mitch@burgessandlamb.com) Burgess & Lamb, P.C. 1000 Broadway, Suite #400 Kansas City, MO 64105 Phone: 816-471-1700X22 Fax: 816-471-1701 - and - Ralph K. Phalen, Esq. (phalenlaw@yahoo.com) Ralph K. Phalen, Attorney at Law 1000 Broadway, Suite #400 Kansas City, MO 64105 Phone: 816-589-0753 Fax: 816-471-1701 PHILIP MORRIS: Faces Texas Litigation Over Light Cigarettes ----------------------------------------------------------- Philip Morris USA, Inc., Altria Group, Inc., R. J. Reynolds Tobacco Company and Reynolds American, Inc. are facing a purported class-action lawsuit over light cigarettes, David Yates of The Southeast Texas Record reports. The suit was filed on July 20, 2009 in the U.S. District Court for the Eastern District of Texas by Charles V. Hanson, III, under the caption, "Hanson v. Philip Morris USA, Inc et al., Case No. 1:09-cv-00704-TH." The suit in general is alleging that the country's largest tobacco companies have been misleading consumers on the actual nicotine and tar content of their light cigarettes. It also accuses Philip Morris, Altria Group, and Reynolds American of deceiving consumers, according to The Southeast Texas Record. Mr. Hanson of Jefferson County claims the defendants misled him into believing light cigarettes were less harmful than regular cigarettes. He started purchasing various brands of cigarettes in the 1950s, according to suit. According to the complaint, a copy of which was obtained by The Southeast Texas Record, Mr. Hanson is claiming that he first smoked regular cigarettes, but then switched to light brands "believing that Defendants' light cigarettes delivered less tar and nicotine and were less harmful." The suit will include all Texas residents who from July 20, 2005 until the end of the litigation purchased cigarettes labeled as "light" or "ultra-lights." So far, the class includes at least 100 members seeking more than $5 million in damages, reports The Southeast Texas Record. "This consumer class action concerns Defendants' ... advertising of light cigarettes as delivering less nicotine ... and being less harmful ... despite Defendants knowledge that these representations were false," the suit states. The Southeast Texas Record reported that the suit accuses the defendants of designing their light cigarettes to register lower levels of tar and nicotine during testing than the levels actually delivered to consumers. The plaintiff argues the tobacco companies intentionally manipulated the design and content "by modifying the tobacco blend, weight, rod length, and circumference, using reconstituted tobacco sheets and expanded tobacco; and by increasing the smoke PH levels of the cigarettes through chemical processing and the use of additive such as ammonia, resulting in the delivery of great amounts of tar and nicotine." The complaint alleges that the defendants knew that their representations that light cigarettes delivered less nicotine and were less harmful were false, deceptive, misleading and unfair, reports The Southeast Texas Record. The defendants are accused of breaching express and implied warranties, violating the Texas Deceptive Trade Practices Act, unjust enrichment and fraudulent concealment, The Southeast Texas Record reports. The lawsuit requests a restitution of money paid at retail for light cigarettes, disgorgement of profits, the establishment of a constructive trust to reimburse the class for economic damages and establishment of a smoker cessation program. The plaintiffs are seeking actual, compensatory and consequential damages, but not damages for personal injury or health care claims, according to The Southeast Texas Record. For more details, contact: Bryan O. Blevins, Jr., Esq. (bblevins@provostumphrey.com) Provost Umphrey - Beaumont 490 Park St. P.O. Box 4905 Beaumont, TX 77704-4905 Phone: 409/838-8858 Fax: 409/813-8610 PRESSTEK INC: N.H. Court Approves "Sloman" Securities Suit Deal --------------------------------------------------------------- Presstek, Inc. (NASDAQ: PRST), a leading manufacturer and marketer of digital offset business solutions, announced that the previously announced settlement of a securities class action against the company and certain current and former directors and former officers was approved by the United States District Court for the District of New Hampshire on July 20, 2009. This class action litigation arose out of the Company's announcement of its preliminary financial results for the third quarter of fiscal 2006. The settlement approved by the Court provides for the payment by the Company and other defendants of $1.25 million, which is being funded by the company's executive liability insurance policies. It was previously reported in the company's May 14, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 4, 2009 that a proposed $1.25 million settlement of the matter, "Sloman v. Presstek, Inc., et al., Case No. 1:06-cv-00377-JD," remains pending. The U.S. District Court for the District of New Hampshire will hold a fairness hearing on July 20, 2009 at 10:00 a.m., which will be held before the Honorable Joseph. N. LaPlante, in the U.S. District Court for the District of New Hampshire, 55 Pleasant St., Concord, NH 03301. Bod Sanders of New Hampshire Business Review reported that Presstek, Inc. agreed to pay $1.25 million to settle a class- action lawsuit charging that the company misled investors about its earnings in 2006 (Class Action Reporter, May 8, 2008). Previously, it was reported that Presstek, Inc. settled a purported securities fraud class-action suit filed before the U.S. District Court for the District of New Hampshire (Class Action Reporter, Nov. 21, 2008). In October 2006, the company and two of its former executive officers were named as defendants in a purported securities class action complaint filed in the U.S. District Court for the District of New Hampshire. The suit claims to be brought on behalf of purchasers of the company's common stock during the period from July 27, 2006, through Sept. 29, 2006. The suit alleges, among other things, that the company and the other defendants violated Sections 10(b) and 20(a) of the U.S. Exchange Act and Rule 10b-5 promulgated thereunder based on allegedly false forecasts of fiscal third quarter and annual 2006 revenues. As relief, the plaintiffs seek an unspecified amount of monetary damages, but make no allegation as to losses incurred by any purported class member, court costs and attorneys' fees. On Sept. 25, 2008 the parties reached a settlement of the action, subject to confirmatory discovery by plaintiffs and court approval. The suit is "Sloman v. Presstek, Inc., et al., Case No. 1:06-cv- 00377-JD," filed in the U.S. District Court for the District of New Hampshire, Judge Joseph A. DiClerico, Jr., presiding. Representing the plaintiffs are: Theodore M. Hess-Mahan, Esq. (ted@shulaw.com) Thomas G. Shapiro, Esq. (tshapiro@shulaw.com) Shapiro Haber & Urmy 53 State St., Boston, MA 02109 Phone: 617-439-3939 Fax: 617-439-0134 - and - Mark L. Mallory, Esq. (mark@malloryandfriedman.com) Mallory & Friedman PLLC 8 Green St., Concord, NH 03301 Phone: 603-228-2277 Representing defendants is: Robert E. McDaniel, Esq. (remcdanielesq@aol.com) McDaniel Law Offices 755 North Main St. Laconia, NH 03246 Phone: 603-527-0520 Fax: 603-279-0540 SCHERING-PLOUGH: Settles N.J. Litigation Over Merck & Co. Merger ---------------------------------------------------------------- Schering-Plough Corporation (NYSE: SGP) reported a proposed settlement, subject to Court approval, to resolve litigation seeking to enjoin the planned merger with Merck & Co., Inc., and other forms of relief. The consolidated class action lawsuits, previously reported in the merger proxy statement/prospectus filed June 25, 2009, were filed in U.S. District Court for the District of New Jersey. The proposed settlement, as more fully described in a Form 8-K being filed today, provides for Schering-Plough to make additional disclosures related to the proposed merger, which are contained in the Form 8-K. No damages would be paid by Schering-Plough in connection with this proposed settlement. The parties agreed that plaintiffs' counsel may apply to the Court for an award of attorneys' fees and costs, to be paid by Schering-Plough. This settlement, if approved by the court, and the settlement announced by Merck today, will serve to resolve and release all claims that were or could have been brought by any shareholder of Schering-Plough or Merck challenging any aspect of the proposed merger, including any disclosures made in connection therewith. Schering-Plough said the proposed settlement is not in any way an admission of any wrongdoing or liability in connection with plaintiffs' allegations. The company said it agreed to settle the suit in order to avoid the further costs and inherent uncertainty of litigation. Schering-Plough Corp. -- http://www.schering-plough.com-- is an innovation-driven, science-centered global health care company. Through its own biopharmaceutical research and collaborations with partners, Schering-Plough creates therapies that help save and improve lives around the world. The company applies its research-and-development platform to human prescription and consumer products as well as to animal health products. SOFTBRANDS INC: Levi & Korsinsky Files Suit Over Proposed Deal -------------------------------------------------------------- Levi & Korsinsky announces that a class action lawsuit has been filed in Delaware Chancery Court challenging the proposed acquisition of SoftBrands, Inc. (AMEX: SBN). The Complaint arises out of the announcement by SoftBrands stating that it had entered into a definitive merger agreement with Golden Gate Capital. Under the proposed agreement, SoftBrands shareholders will receive $0.92 in cash for each share of SoftBrands they own for a total transaction value of approximately $41.3 million or $80 million including debt and preferred shares. The price appears unfair given that the 52- week high for SoftBrands share is $1.08 and at least one analysts set a price target of $1.00 for SoftBrands stock. For more details, contact: Eduard Korsinsky, Esq. Juan E. Monteverde, Esq. Levi & Korsinsky, LLP 30 Broad Street - 15th Floor New York, NY 10004 Phone: (212) 363-7500 Web site: http://www.zlk.com/sbn1.html STATION CASINOS: Faces Ex-Employees' Nev. Suit Over Unpaid Wages ---------------------------------------------------------------- Station Casinos, Inc. faces a purported class-action lawsuit in Clark County District Court alleging current and former Station employees are owed wages for unpaid hours they claimed to have worked, Steve Green of The Las Vegas Sun reports. The lead plaintiffs in the suit -- filed on July 21, 2009 -- are former Station employees Josh Lukevich, Cathy Scott, and Julie St. Cyr. The lawsuit seeks to represent all individuals who are or were employed by Station since Feb. 4, 2005. The properties named as defendants are Boulder Station, Fiesta Henderson, Fiesta Rancho, Gold Rush, Magic Star, Palace Station, Red Rock Resort, Santa Fe Station, Sunset Station, Texas Station, Wildfire and Wild Wild West, according to The Las Vegas Sun. The workers claim that because of its labor budgeting procedure, Station Casinos strictly allocated the number of hours that could be used to staff the various departments at its properties and that compensation of salaried managers was tied to complying with the labor budgets. The lawsuit claims Station Casinos regularly rounded hourly employees' starting and end times for each shift and failed to compensate them for all their work time and for overtime, according to The Las Vegas Sun. "Defendants' practices ... are anti-competitive in that these illegal practices make one of defendants' largest cost items - labor - lower than as compared to other casino owners/operators who are desirous of complying with the labor laws," according to the complaint, a copy of which was obtained by The Las Vegas Sun. The workers complained they were required to work off the clock, that is before they clocked in or after they clocked out electronically using a "Kronos" timekeeping system. They also said the Kronos system rounded the time worked by between 7 minutes and 14 minutes, The Las Vegas Sun reported. UNITED PARCEL: Aug. 3 Trial Set for Franchisees' Suit in Calif. --------------------------------------------------------------- An Aug. 3, 2009 trial is slated for a class-action lawsuit filed against United Parcel Service, Inc. by its Mail Boxes Etc. franchisees, Peralte C. Paul of The Atlanta Journal-Constitution reports. The trial, which is expected to last five days, follows a ruling last month granting more than 3,500 Mail Boxes Etc. franchisees class-action status in the suit, in which the franchisees assert that they were ruined when the UPS took them over, according to The Atlanta Journal-Constitution. The California Superior Court certified a nationwide fraud class action (Morgate LLC v. Mail Boxes Etc., Inc., Case No. 294647) against United Parcel Service, Inc. (UPS) and its affiliates on June 19, 2009 (Class Action Reporter, June 24, 2009). The class action consists of owners of The UPS Store who converted from Mail Boxes Etc. stores to The UPS Store in 2003. Judge William F. Highberger certified the class action in June, allowing 3500 owners of The UPS Store to present their claims that UPS and its affiliated companies violated California law, including the California Franchise Investment Law that protects franchisees from deception. Legal actions have been filed by The UPS Store owners who alleged they were misled to convert from Mail Boxes Etc. stores to The UPS Stores. Other legal actions have been filed by Mail Boxes Etc. store owners who allege they were subjected to breaches of contract and other violations of California law. Both sets of claims are pending before Judge William F. Highberger. For more details, contact: Amy Darby, Esq. or Miles Scully, Esq. Mobile: (720)346-3587 or (619) 248-2691 - and - Mara Woloshin Phone: 503-310-4504 or 323-654-5692 UNITED PARCEL: Third Circuit Reverses "Hohider" Certification ------------------------------------------------------------- The U.S. Court of Appeals for the Third Circuit reversed the U.S. District Court for the Western District of Pennsylvania's recent certification order in the matter, "Hohider v. United Parcel Service, et al., Case No. 2:04-cv-00363-JFC," Zack Needles of The Legal Intelligencer reports. Remanding the case for proceedings, the Third Circuit said the federal court improperly certified the class to bring a pattern- or-practice discrimination suit under Title I of the Americans with Disabilities Act (ADA) of 1990 because it failed to consider whether the class members were qualified under the ADA, according to The Legal Intelligencer. Instead, according to Chief Judge Anthony Scirica's opinion, the district court relied solely on the "Teamsters framework," a two-stage method of proof for adjudicating pattern-or-practice claims under Title VII of the Civil Rights Act of 1964 that was born out of the 1977 U.S. Supreme Court case "International Brotherhood of Teamsters v. United States." Judge Scirica said, "Contrary to the District Court's conclusion, adopting the Teamsters method of proof to adjudicate plaintiffs' claim does not obviate the need to consider the ADA's statutory elements." He added, "We believe this error in identifying the legal standard controlling plaintiffs' claims resulted in an improper grant of class certification," reports The Legal Intelligencer. The Legal Intelligencer reported that the judge was joined in the decision by Circuit Judge Marjorie O. Rendell and visiting former U.S. Supreme Court Justice Sandra Day O'Connor. It was previously reported that United Parcel Service, Inc.'s appeal of the U.S. District Court for the Western District of Pennsylvania's recent certification order in the matter "Hohider v. United Parcel Service, et al., Case No. 2:04-cv-00363-JFC," remains pending with the U.S. Court of Appeals for the Third Circuit (Class Action Reporter, March 16, 2009). The lawsuit was filed in 2004, charging UPS with systematic violations of the Americans with Disabilities Act, the federal law that protects persons with disabilities from employment discrimination (Class Action Reporter, Aug. 1, 2007). According to one of the allegations in the lawsuit, UPS maintains a policy, pattern and practice of requiring employees to provide a "full" or "100 percent" medical release, without restrictions, before permitting employees to return to work following a medical leave of absence. The lawsuit also charges that UPS refuses to meet in good faith with its disabled employees to determine the extent of their disabilities and what work the employees can perform at UPS within the limits of their work restrictions, instead conducting a sham investigation of the workers' medical condition, which invariably results in a decision by UPS that the individual is either too disabled to work at any job UPS has or not disabled enough to warrant the protection of federal laws that require UPS to assist the worker to return to work. Either way UPS puts the employee out of a job at the company. Employees also contend that UPS refuses to reinstate permanently disabled employees in a position that will accommodate their medical restrictions in situations where reinstating them would not impose an undue hardship on the company. Finally, the lawsuit charges UPS retaliates against workers who have filed workers compensation or discrimination claims by refusing to let them return to work even if a 100% release is eventually submitted, and in violation of the workers' seniority rights under UPS' collective bargaining agreement with the International Brotherhood of Teamsters. The plaintiffs are seeking a permanent injunction to enjoin UPS from engaging in discriminatory employment practices in violation of the ADA, as well as the implementation of policies that provide equal employment opportunities for persons with present, past or perceived disabilities. The court certified the suit as a class action. In August 2007, the U.S. Court of Appeals for the Third Circuit granted the company's petition to hear its appeal of the trial court's recent certification order. The appeal will likely take one year, according to the company's Feb. 27, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for fiscal year ended Dec. 31, 2008. The suit is "Hohider v. United Parcel Service, et al., Case No. 2:04-cv-00363-JFC," filed in the U.S. District Court for the Western District of Pennsylvania, Judge Joy Flowers Conti, presiding. Representing plaintiffs is: Christian Bagin, Esq. (christian@wienandandbagin.com) 312 Boulevard of the Allies, Suite 600 Pittsburgh, PA 15222-1916 Phone: 412-281-1110 Fax: 412-281-8481 Donald A. Broggi, Esq. (dbroggi@scott-scott.com) Arthur L. Shingler, III, Esq. (ashingler@scott-scott.com) Scott + Scott 600 B Street, Suite 1500 San Diego, CA 92101 Phone: 619-233-4565 Erin G. Comite, Esq. (ecomite@scott-scott.com) Anita M. Laing, Esq. (alaing@scott-scott.com) David R. Scott, Esq. (drscott@scott-scott.com) Scott & Scott 108 Norwich Avenue, P.O. Box 192 Colchester, CT 06415 Phone: 860-537-5537 860-537-3818 - and - Judith B. Goldstein, Esq. (jgoldstein@equaljusticefoundation.com) Kimberly M. Skaggs, Esq. Equal Justice Foundation 88 East Broad Street, Suite 1590 Columbus, OH 43215 Phone: 614-221-9800 Fax: 614-221-9810 Representing defendant are: Joseph E. Culleiton, Esq. (jculleiton@reedsmith.com) David J. McAllister, Esq. (dmcallister@reedsmith.com) Joseph P. McHugh, Esq. (jmchugh@reedsmith.com) Perry A. Napolitano, Esq. (pnapolitano@reedsmith.com) Reed Smith 435 Sixth Avenue Pittsburgh, PA 15219-1886 Phone: 412-288-7216 412-288-3131 New Securities Fraud Cases ACCURAY INC: Howard G. Smith Announces Securities Lawsuit Filing ---------------------------------------------------------------- The Law Offices of Howard G. Smith announces that a securities class action lawsuit has been filed on behalf of all persons or entities who purchased the common stock of Accuray, Inc. (Nasdaq: ARAY) pursuant or traceable to the Company's Initial Public Offering on or about February 7, 2007, and purchasers of the Company's common stock between February 7, 2007 and August 19, 2008, inclusive. The class action lawsuit was filed in the United States District Court for the Northern District of California. The Complaint alleges that the defendants violated federal securities laws by issuing material misrepresentations to the market concerning Accuray's business, operations and prospects, thereby artificially inflating the price of Accuray securities. No class has yet been certified in the above action. A request for lead plaintiff status must satisfy certain criteria and be made on or before Sept. 21, 2009. For more details, contact: Howard G. Smith, Esq. (howardsmith@howardsmithlaw.com) Law Offices of Howard G. Smith 3070 Bristol Pike, Suite 112 Bensalem, Pennsylvania 19020 Phone: (215) 638-4847 or (888) 638-4847 Web site: http://www.howardsmithlaw.com NOVEN PHARMACEUTICALS: Kendall Law Group Announces Suit Filing -------------------------------------------------------------- Kendall Law Group, led by a former federal judge and U.S. Attorney, announces a shareholder class action has been filed in Delaware Chancery Court on behalf of current investors of Noven Pharmaceuticals, Inc. (NASDAQ: NOVN), who purchased their shares before July 14, 2009. The lawsuit concerns potential breaches of fiduciary duty and other violations of state law in connection with an alleged unfair takeover price. Noven Pharmaceuticals, Inc. and Hisamitsu Pharmaceutical Co., Inc. announced on Tuesday, July 14, 2009, that they have entered into a definitive merger agreement pursuant to which Hisamitsu Pharmaceutical offered to acquire Noven Pharmaceutical for total cash consideration of approximately $428 million, or $16.50 per share, in an all-cash tender offer for 100% of the outstanding shares of Noven. The offer price represents a 22% premium to the closing price of Noven's common stock on July 13, 2009. The complaint alleges that "the consideration that Hisamitsu has stated it will offer to holders of Noven common stock, and that Noven's Board has accepted in unanimously agreeing to the Proposed Transaction, is unfair and inadequate because, among other things, the intrinsic value of Noven common stock is materially higher than the amount offered, giving due consideration to the Company's growth and operating results and a promising new drug product in its pipeline." Hisamitsu has had a capital alliance with Noven since 2001 and owns already 4.98 percent of its outstanding shares. Noven Pharmaceuticals, Inc., located in Miami, Florida, is a specialty pharmaceutical company engaged in the research, development, manufacturing, licensing, marketing and sale of prescription pharmaceutical products. For more details, contact: Hamilton Lindley, Esq. (hlindley@kendalllawgroup.com) Kendall Law Group 3232 McKinney, Ste. 700 Dallas, TX 75204 Phone: (214) 744-3000 or (877) 744-3728 Fax: (214) 744-3015 Web site: http://www.kendalllawgroup.com OPPENHEIMER AMT-FREE: Howard G. Smith Announces Lawsuit Filing -------------------------------------------------------------- The Law Offices of Howard G. Smith announces that a class action lawsuit brought on behalf of those who purchased or otherwise acquired Oppenheimer AMT-Free New York Municipals securities (Nasdaq: OPNYX; Nasdaq: ONYBX; Nasdaq: ONYCX) between May 1, 2006 and October 21, 2008, inclusive, has been transferred to the United States District Court for the District of Colorado. The deadline for investors to file motions to be appointed Lead Plaintiff is August 7, 2009. The complaint alleges the defendants violated the Securities Act of 1933 by failing to disclose in the Fund's prospectus that the Fund employed strategies designed to enhance its reported returns while, at the same time, these strategies exposed the Fund to much greater risk of price decline in the value of its portfolio securities in the event of illiquidity in the market for municipal securities. The complaint alleges that the defendants failed to disclose that these strategies exposed the Fund to greater risk of loss should the Fund be forced to sell large blocks of its portfolio at disadvantageous times at prices reduced from those at which the securities were previously carried on the Fund's books. The Fund's shares declined significantly, according to the complaint, when these risks materialized. A request for lead plaintiff status must satisfy certain criteria and be made on or before Aug. 7, 2009. For more details, contact: Howard G. Smith, Esq. (howardsmith@howardsmithlaw.com) Law Offices of Howard G. Smith 3070 Bristol Pike, Suite 112 Bensalem, Pennsylvania 19020 Phone: (215) 638-4847 or (888) 638-4847 Web site: http://www.howardsmithlaw.com ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent research, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel S. Senorin, 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. 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