/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/091027.mbx C L A S S A C T I O N R E P O R T E R Tuesday, October 27, 2009, Vol. 11, No. 212 Headlines ALLSCRIPTS-MISYS: David Robb Wants Appointment as Lead Plaintiff ALLSTATE LIFE: Third Circuit Breathes Life Back Into ERISA Case ARCA BIOPHARMA: Continues to Seek Dismissal of Amended Suit BFC FINANCIAL: Unit Continues to Defend "Dance" Securities Suit BRUSH ENGINEERED: Appeal to Denied "Marin" Certification Pending BRUSH ENGINEERED: Appellate Court Approves Motion to Lift Stay CELERA CORP: No Agreement Reached in Stock Purchasers Suit HERLEY INDUSTRIES: Pa. Securities Suit Gets Class Certification MARCUS CORP: Units Plea to Dismiss "Goodman" Suit Being Briefed NUCOR CORP: Continues to Defend Antitrust Class Suit in Illinois SOUTHERN STAR: Kansas Court Mulls Intervention Bid in "Price I" SOUTHERN STAR: Court Yet to Allow Intervenor in "Price II" Case TELLABS INC: Discovery Still Ongoing in Securities Fraud Suit TELLABS INC: "Brieger" Plaintiffs File Notice of Appeal TISHMAN SPEYER: N.Y. Ct. of App. Rules in Tenants' Favor USANA HEALTH: Continues to Defend "Chirco" Suit in Nevada Court ********* ALLSCRIPTS-MISYS: David Robb Wants Appointment as Lead Plaintiff ---------------------------------------------------------------- David Robb has moved for appointment as Lead Plaintiff and for approval of selection of lead and liaison counsel in a lawsuit against Allscripts-Misys Healthcare Solutions Inc., according to the company's Oct. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Aug. 31, 2009. On Aug. 4, 2009, a lawsuit was filed in the United States District Court for the Northern District of Illinois against the company, Glen Tullman and William Davis by the Plumbers and Pipefitters Local Union No. 630 Pension-Annuity Trust Fund on behalf of a purported class consisting of stockholders who purchased Allscripts common stock between May 8, 2007 and Feb. 13, 2008. The complaint alleges that during the class period, the company, Glen Tullman and William Davis made materially false and misleading statements regarding the Company's financial condition and prospects, and on that basis the complaint asserts violations of federal securities laws. The plaintiff seeks to recover the price declines in Allscripts' common stock that occurred on Nov. 8, 2007, when the company released its third quarter 2007 financial results, and on Feb. 13, 2008, when the company released full year 2007 results. On Oct. 5, 2009, David Robb moved for appointment as Lead Plaintiff and for approval of selection of lead and liaison counsel. Headquartered in Chicago, Allscripts-Misys Healthcare Solutions Inc. -- http://www.allscripts.com/-- uses innovation technology to bring health to healthcare. More than 160,000 physicians, 800 hospitals and nearly 8,000 post-acute and homecare organizations utilize Allscripts to improve the health of their patients and their bottom line. The company's award-winning solutions include electronic health records, electronic prescribing, revenue cycle management, practice management, document management, hospital care management, emergency department information systems and homecare automation. Allscripts is the brand name of Allscripts- Misys Healthcare Solutions, Inc. ALLSTATE LIFE: Third Circuit Breathes Life Back Into ERISA Case --------------------------------------------------------------- The U.S. Court of Appeals for the Third Circuit vacated the decision which granted Allstate Insurance Company's motion to dismiss a putative nationwide class action filed by former employee agents alleging various violations of ERISA, including a worker classification issue, according to Allstate Life Insurance Company's Aug. 11, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Allstate Life is wholly owned by Allstate Insurance. These plaintiffs are challenging certain amendments to the Agents Pension Plan and are seeking to have exclusive agent independent contractors treated as employees for benefit purposes. This matter was dismissed with prejudice by the trial court, was the subject of further proceedings on appeal, and was reversed and remanded to the trial court in 2005. In June 2007, the court granted Allstate Insurance's motion to dismiss the case. Following plaintiffs' filing of a notice of appeal, the Third Circuit issued an order in December 2007 stating that the notice of appeal was not taken from a final order within the meaning of the federal law and thus not appealable at this time. In March 2008, the Third Circuit decided that the appeal should not summarily be dismissed and that the question of whether the matter is appealable at this time will be addressed by the Third Circuit along with the merits of the appeal. In July 2009, the Third Circuit vacated the decision which granted Allstate Insurance's motion to dismiss the case, remanded the case to the trial court for additional discovery, and directed that the case be reassigned to another trial court judge. Allstate Life Insurance Co. -- http://www.allstate.com/-- is a life insurance company. The Company, together with its subsidiaries, provides life insurance, retirement and investment products for individual and institutional customers. Allstate Life conducts substantially all of its operations directly or through wholly owned United States subsidiaries. The Company and its subsidiaries are collectively referred to as the Allstate Life Group. The Allstate Life Group's principal individual products are fixed annuities, including deferred, immediate and indexed, and interest-sensitive, traditional and variable life insurance. It also distributes variable annuities through its bank distribution partners. Allstate Life is a wholly owned subsidiary of Allstate Insurance Co., a stock property-liability insurance company. Allstate Insurance Co. is owned by The Allstate Corp. ARCA BIOPHARMA: Continues to Seek Dismissal of Amended Suit ----------------------------------------------------------- ARCA biopharma, Inc., formerly known as Nuvelo, Inc., continues to pursue the dismissal of an amended consolidated complaint related to the clinical trial results of alfimeprase. On Feb. 9, 2007, Nuvelo and certain of its former and current officers and directors were named as defendants in a purported securities class-action lawsuit filed in the U.S. District Court for the Southern District of New York. The suit alleges violations of the Securities Exchange Act of 1934 related to the clinical trial results of alfimeprase, which Nuvelo announced on Dec. 11, 2006, and seeks damages on behalf of purchasers of Nuvelo's common stock during the period between Jan. 5, 2006 and Dec. 8, 2006. Specifically, the suit alleges that Nuvelo misled investors regarding the efficacy of alfimeprase and the drug's likelihood of success. The plaintiff seeks unspecified damages and injunctive relief. Three additional lawsuits were filed in the Southern District of New York on Feb. 16, 2007, March 1, 2007 and March 6, 2007. On April 10, 2007, three separate motions to consolidate the cases, appoint lead plaintiff, and appoint lead plaintiff's counsel were filed. On April 18, 2007, Nuvelo filed a motion to transfer the four cases to the Northern District of California. The Court grantedNuvelo's motion to transfer the cases to the Northern District of California in July 2007. Plaintiffs have filed motions for consolidation, lead plaintiff and lead plaintiff's counsel in the Northern District of California. Plaintiffs filed their consolidated complaint in the Northern District of California on Nov. 9, 2007. Nuvelo filed a motion to dismiss plaintiffs consolidated complaint on Dec. 21, 2007. Plaintiffs filed an opposition to Nuvelo's motion to dismiss on Feb. 4, 2008. On June 12, 2008, the Court held a hearing on the motion to dismiss. On Dec. 4, 2008, the Court issued an order dismissing plaintiff's complaint, and granting leave to amend. On Jan. 23, 2009, plaintiffs filed an amended complaint, alleging similar claims. On March 24, 2009, defendants filed a motion to dismiss the amended complaint. On July 15, 2009, the Court held a hearing on the motion to dismiss. Based on the Court's Dec. 4, 2008 order, and plaintiff's amended complaint, ARCA believes that any attorneys' fees, loss or settlement payment with respect to this suit will be paid by its insurance providers, according to the company's Aug. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. ARCA biopharma, Inc. -- http://www.nuvelo.com/-- formerly known as Nuvelo, Inc., is a biopharmaceutical company engaged in the discovery, development and commercialization of drugs for acute cardiovascular disease, cancer and other debilitating medical conditions. BFC FINANCIAL: Unit Continues to Defend "Dance" Securities Suit --------------------------------------------------------------- BFC Financial Corp.'s subsidiary, Woodbridge Holdings Corp. formerly known as Levitt Corp., continues to defend a purported class-action complaint filed by Robert D. Dance in the U.S. District Court for the Southern District of Florida, according to the company's Aug. 11, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On Jan. 25, 2008, plaintiff Robert D. Dance filed a purported class-action complaint as a putative purchaser of securities against Woodbridge and certain of its officers and directors, asserting claims under the federal securities law and seeking damages. This action was filed in the U.S. District Court for the Southern District of Florida and is captioned, Dance v. Levitt Corp. et al., No. 08-CV-60111-DLG. The securities litigation purports to be brought on behalf of all purchasers of Woodbridge's securities beginning on Jan. 31, 2007 and ending on Aug. 14, 2007. The complaint alleges that the defendants violated Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated thereunder by issuing a series of false and/or misleading statements concerning Woodbridge's financial results, prospects and condition. BFC Financial Corp. -- http://www.bfcfinancial.com/-- is a holding company. Its ownership interests include direct and indirect interests in businesses in a variety of sectors, including consumer and commercial banking, master-planned community development, time-share and vacation ownership, an Asian-themed restaurant chain and various real estate and venture capital investments. BFC's holdings consist of direct controlling interests in BankAtlantic Bancorp, Inc. and Levitt Corporation. BFC owns a direct investment in Benihana, Inc. BFC itself has no significant operations other than activities relating to the monitoring of existing investments. BFC operates through six segments: BFC Activities, Financial Services and four segments within its Real Estate Development Division. BRUSH ENGINEERED: Appeal to Denied "Marin" Certification Pending ---------------------------------------------------------------- The plaintiffs' appeal from their denied motion for class certification in the beryllium action against Brush Engineered Materials, Inc.'s subsidiary, Brush Wellman Inc., remains pending. The class-action suit, Manuel Marin, et al. v. Brush Wellman Inc., Case No. BC299055, filed in the Superior Court of California, Los Angeles County was filed on July 15, 2003. The named plaintiffs are Manuel Marin, Lisa Marin, Garfield Perry and Susan Perry. The defendants are Brush Wellman, Appanaitis Enterprises, Inc., and Doe Defendants 1 through 100. A First Amended Complaint was filed on Sept. 15, 2004, naming five additional plaintiffs. The five additional named plaintiffs are Robert Thomas, Darnell White, Leonard Joffrion, James Jones and John Kesselring. The plaintiffs allege that they have been sensitized to beryllium while employed at the Boeing Company. The plaintiffs' wives claim loss of consortium. The plaintiffs purport to represent two classes of approximately 250 members each, one consisting of workers who worked at Boeing or its predecessors and are beryllium sensitized and the other consisting of their spouses. They have brought claims for negligence, strict liability - design defect, strict liability - failure to warn, fraudulent concealment, breach of implied warranties, and unfair business practices. The plaintiffs seek injunctive relief, medical monitoring, medical and health care provider reimbursement, attorneys' fees and costs, revocation of business license, and compensatory and punitive damages. Messrs. Marin, Perry, Thomas, White, Joffrion, Jones and Kesselring represent current and past employees of Boeing in California; and Ms. Marin and Ms. Perry are spouses. Defendant Appanaitis Enterprises Inc. was dismissed on May 5, 2005. The plaintiffs' motion for class certification, which the company opposed, was heard by the court on Feb. 8, 2008, and the motion was denied by the court on May 7, 2008. The plaintiffs filed a notice of appeal on May 20, 2008. No further updates were reported in the company's Aug. 11, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 3, 2009. Brush Engineered Materials, Inc. -- http://www.beminc.com/-- through its wholly owned subsidiaries, is a manufacturer of engineered materials serving the global telecommunications, computer, data storage, aerospace and defense, automotive electronics, industrial components, and appliance markets. BRUSH ENGINEERED: Appellate Court Approves Motion to Lift Stay -------------------------------------------------------------- Gary Anthony's appeal from the U.S. District Court for the Eastern District of Pennsylvania's dismissal of his purported class-action lawsuit against Brush Engineered Materials, Inc. remains stayed. The purported class-action lawsuit is captioned, "Gary Anthony v. Small Tube Manufacturing Corporation d/b/a Small Tube Products Corporation, Inc., et al., Case No. 000525," which was filed in the Court of Common Pleas of Philadelphia County, Pennsylvania, on Sept. 7, 2006. The case was removed to the U.S. District Court for the Eastern District of Pennsylvania, under Case No. 06-CV-4419, on Oct. 4, 2006. The only named plaintiff is Gary Anthony. The defendants are Small Tube Manufacturing Corporation, d/b/a Small Tube Products Corporation, Inc.; Admiral Metals Inc.; Tube Methods, Inc.; and Cabot Corporation. The plaintiff purports to sue on behalf of a class of current and former employees of the U.S. Gauge facility in Sellersville, Pennsylvania who have ever been exposed to beryllium for a period of at least one month while employed at U.S. Gauge. The plaintiff has brought claims for negligence. Plaintiff seeks the establishment of a medical monitoring trust fund, cost of publication of approved guidelines and procedures for medical screening and monitoring of the class, attorneys' fees and expenses. Defendant Tube Methods, Inc. filed a third-party complaint against Brush Wellman Inc. in that action on Nov. 15, 2006. Tube Methods alleges that Brush supplied beryllium-containing products to U.S. Gauge, and that Tube Methods worked on those products, but that Brush is liable to Tube Methods for indemnification and contribution. Brush moved to dismiss the Tube Methods complaint on Dec. 22, 2006. On Jan. 12, 2007, Tube Methods filed an amended third-party complaint, which Brush moved to dismiss on Jan. 26, 2007; however, the Court denied the motion on Sept. 28, 2007. Brush filed its answer to the amended third-party complaint on Oct. 19, 2007. On Nov. 14, 2007, two of the defendants filed a joint motion for an order permitting discovery to make the threshold determination of whether plaintiff is sensitized to beryllium. On Feb. 13, 2008, the court approved the parties' stipulation that the plaintiff is not sensitized to beryllium. On Feb. 29, 2008, Brush filed a motion for summary judgment based on plaintiff's lack of any substantially increased risk of chronic beryllium disease (CBD). Oral argument on this motion took place on June 13, 2008, and the court took the motion under submission. On Sept. 30, 2008, the court granted the motion for summary judgment in favor of all of the defendants and dismissed plaintiff's class action complaint. On Oct. 29, 2008, plaintiff filed a notice of appeal. The Court of Appeals has granted a motion to stay the appeal due to the bankruptcy of one of the appellees, Millennium Petrochemicals. On April 3, 2009, Small Tube Manufacturing filed a motion for relief in bankruptcy court from the automatic stay, asking that the bankruptcy court modify the stay to allow Small Tube Manufacturing's indemnification claim against Millennium Petrochemicals and the Anthony case to proceed to final judgment, including all appeals. On May 14, 2009, the bankruptcy court approved a stipulation and order modifying the automatic stay to permit Millennium Petrochemicals and Small Tube Manufacturing to participate in the appeal. On May 27, 2009, Small Tube Manufacturing filed an unopposed motion with the Court of Appeals to lift the stay, which the court granted on June 22, 2009, according to the company's Aug. 11, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 3, 2009. Brush Engineered Materials, Inc. -- http://www.beminc.com/-- through its wholly owned subsidiaries, is a manufacturer of engineered materials serving the global telecommunications, computer, data storage, aerospace and defense, automotive electronics, industrial components, and appliance markets. CELERA CORP: No Agreement Reached in Stock Purchasers Suit ---------------------------------------------------------- No agreement has yet been reached in consolidated class-action complaint against Applied Biosystems, Inc., nka Life Technologies, and some of its officers relating to the public offering of Celera Group common stock, according to Celera's Aug. 11, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 27, 2009. Applied Biosystems and some of its officers are defendants in a lawsuit brought on behalf of purchasers of Celera stock in its follow-on public offering of Celera stock completed on March 6, 2000. In the offering, Applied Biosystems sold an aggregate of approximately 4.4 million shares of Celera stock at a public offering price of $225 per share. The lawsuit, which was commenced with the filing of several complaints in April and May 2000, is pending in the U.S. District Court for the District of Connecticut, and an amended consolidated complaint was filed on August 21, 2001. The consolidated complaint generally alleges that the prospectus used in connection with the offering was inaccurate or misleading because it failed to adequately disclose the alleged opposition of the Human Genome Project and two of its supporters, the governments of the U.S. and the U.K., to providing patent protection to Celera's genomic-based products. Although neither Celera nor Applied Biosystems ever sought, or intended to seek, a patent on the basic human genome sequence data, the complaint also alleges that Applied Biosystems did not adequately disclose the risk that it would not be able to patent this data. The consolidated complaint seeks unspecified monetary damages, rescission, costs and expenses, and other relief as the court deems proper. On March 31, 2005, the court certified the case as a class action. In November 2008, the U.S. District Court for the District of Connecticut issued an order to the parties to show cause why the case should not be dismissed. A hearing on this matter was held in April 2009 at which the Court directed the parties to explore a potential settlement of the matter. The parties are exploring a settlement in accordance with the Court's direction, but no agreement has yet been reached. Celera Corp. -- http://www.celera.com-- is a healthcare business delivering personalized disease management through a combination of products and services. The Company operates in three segments: a clinical laboratory testing service business (Lab Services), a products business (Products), and a segment which includes other activities under corporate management (Corporate). Its Lab Services business, conducted through Berkeley HeartLab, Inc., (BHL), offers a portfolio of clinical laboratory tests and disease management services to help healthcare providers improve cardiovascular disease treatment regimens for patients. Its Products business develops, manufactures, and oversees the commercialization of molecular diagnostic products, which are commercialized through its relationship with Abbott Molecular, a subsidiary of Abbott Laboratories. On July 1, 2008, Celera announced that it has completed its split-off from Applera Corp. HERLEY INDUSTRIES: Pa. Securities Suit Gets Class Certification --------------------------------------------------------------- An order granting the Plaintiffs' motion for class certification was entered in In re Herley Industries Inc. Securities Litigation, Case No. 06-cv-02596 (E.D. Pa.) (Sanchez, J.), according to the company's Oct. 19, 2009, Form 10-K filing for the fiscal year ended Aug. 2, 2009. In June and July 2006, several class-action complaints were served against the company and certain of Herley's current and former officers and directors. The claims are made under Section 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. The plaintiffs seek unspecified damages on behalf of a purported class of purchasers of the company's securities during various periods before June 14, 2006. All defendants in the class-action complaints filed motions to dismiss on April 6, 2007. On July 17, 2007, the Court issued an order denying the company and its former Chairman's motion to dismiss and granted, in part, the other defendants' motion to dismiss. Specifically, the Court dismissed the Section 10(b) claim against the other defendants and denied the motion to dismiss the Section 20(a) claim against them. On July 9, 2008, Plaintiffs filed a Motion for Class Certification. On March 4, 2009, all defendants filed an Opposition to Plaintiffs' Motion for Class Certification. On May 18, 2009 Plaintiffs filed a reply in support of their motion for class certification. Oral argument regarding the Plaintiffs' motion for class certification was held on July 17, 2009. On Oct. 9, 2009, the Court issued an order granting Plaintiffs' motion for class certification. The Court certified a class consisting of all purchasers of Herley stock between Oct. 1, 2001 and June 14, 2006, who sustained a loss as a result of that acquisition. The parties are currently in the process of completing fact and expert discovery. Representing the plaintiffs are: Stanley P. Kops, Esq. 102 Bala Avenue Bala Cynwyd, PA 19004 Phone: 610-949-9999 E-mail: Stankops@aol.com - and - Marc A. Topaz, Esq. SCHIFFRIN & BARROWAY, LLP 280 King of Prussia Road Radnor, PA 19087 Phone: 610-667-7706 Fax: 610-667-7056 Representing the defendants are: Joel L. Frank, Esq. Thomas P. Hogan, Jr., Esq. LAMB MCERLANE PC 24 East Market Street, P.O. Box 565 West Chester, PA 19381-0565 Phone: 610-430-8000 Fax: 610-692-6210 E-mail: jfrank@chescolaw.com thogan@chescolaw.com - and - Timothy D. Katsiff, Esq. BLANK ROME LLP One Logan Square, 18th & Cherry Streets Philadelphia, PA 19103-6998 Phone: 215-569-5500 Fax: 215-569-5555 E-mail: katsiff@blankrome.com MARCUS CORP: Units Plea to Dismiss "Goodman" Suit Being Briefed --------------------------------------------------------------- Platinum Condominium Development, LLC, and Marcus Management Marcus Management Las Vegas, LLC's move to dismiss the amended class action complaint filed by Adam Goodman is currently being briefed, according to the company's Aug. 11, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended May 28, 2009. Platinum LLC and Marcus Management are Marcus Corp.'s subsidiaries. On Dec. 5, 2008, a class action complaint was filed in the Eighth Judicial District Court of Nevada for Clark County against Platinum LLC captioned, "Goodman, et al. v. Platinum Condominium Development, LLC, Case No. 09-CV-957 (D. Nev.)." On April 30, 2009, Platinum LLC was served with a summons and a copy of an amended complaint. The amended complaint also named Marcus Management as a defendant. Subsequently, Platinum LLC and Marcus Management removed the case to the United States District Court for the District of Nevada, where it is currently pending. The amended complaint in Goodman seeks an unspecified amount of damages and alleges violations of federal and Nevada law, and that Platinum LLC and Marcus Management made various representations in connection with the Platinum Hotel & Spa development in Las Vegas, Nevada. On June 29, 2009, both Platinum LLC and Marcus Management LV moved to dismiss the amended complaint in its entirety and their motion is currently being briefed. The Marcus Corporation -- http://www.marcuscorp.com/-- is engaged primarily in two business segments: movie theatres, and hotels and resorts. As of May 28, 2009, the company's theatre operations included 53 movie theatres with 663 screens throughout Wisconsin, Ohio, Illinois, Minnesota, North Dakota, Nebraska and Iowa, including one movie theatre with six screens in Wisconsin owned by a third party but managed by the company. It also operates a family entertainment center, Funset Boulevard, which is adjacent to one of its theatres in Appleton, Wisconsin. As of May 28, 2009, the company's hotels and resorts operations included eight owned and operated hotels and resorts in Wisconsin, Missouri, Illinois and Oklahoma. It also manages 12 hotels, resorts and other properties for third parties in Wisconsin, Minnesota, Ohio, Texas, Arizona, Missouri, Nevada and California. As of May 28, 2009, it owned or managed approximately 5,200 hotel and resort rooms. NUCOR CORP: Continues to Defend Antitrust Class Suit in Illinois ---------------------------------------------------------------- Nucor Corp. continues to defend several related antitrust class- action complaints filed by Standard Iron Works and other steel purchasers in the United States District Court for the Northern District of Illinois, according to the company's Aug. 11, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 4, 2009. Standard Iron Works v. ArcelorMittal, et al., Case No. 08-cv-5214 (N.D. Ill.), was filed on Sept. 12, 2008, and names the company as defendant along with: 1. ArcelorMittal USA, 2. U.S. Steel Corp., 3. Gerdau Ameristeel, 4. Steel Dynamics, Inc., 5. AK Steel Holding, 6. SSAB Swedish Steel, and 7. Commercial Metals The plaintiffs allege that from January 2005 to the present, the eight steel manufacturers engaged in anticompetitive activities with respect to the production and sale of steel. The plaintiffs seek monetary and other relief. In a decision announced on June 12, 2009, Judge James B. Zagel denied a motion by the defendants to dismiss the lawsuit. Judge Zagel determined that the eight steel manufacturers coordinated production schedules and undertook other schemes intended to inflate the price of steel between January 2005 and the present. (Class Action Reporter, June 18, 2009). SOUTHERN STAR: Kansas Court Mulls Intervention Bid in "Price I" --------------------------------------------------------------- The District Court in Stevens County, Kansas, has yet to rule on a motion to intervene filed by a third party who is claiming entitlement to a portion of any recovery obtained by the plaintiffs in the purported class-action lawsuit, Will Price, et al. v. El Paso Natural Gas Co., et al. The putative class-action lawsuit was filed on May 28, 1999, wherein the named plaintiffs have sued over 50 defendants, including Southern Star Central Gas Pipeline, Inc. Asserting theories of civil conspiracy, aiding and abetting, accounting and unjust enrichment, a fourth amended class action complaint in the case alleges that the defendants have under- measured the volume of, and therefore have underpaid for, the natural gas they have obtained from or measured for the plaintiffs. The plaintiffs seek unspecified actual damages, attorney fees, pre- and post-judgment interest, and reserved the right to plead for punitive damages. On Aug. 22, 2003, an answer to that pleading was filed on behalf of Southern Star. Despite a denial by the court on April 10, 2003, of their original motion for class certification, the plaintiffs continue to seek the certification of a class. The plaintiffs' motion seeking class certification for a second time was fully briefed and the court heard oral argument on this motion on April 1, 2005. In January 2006, the court heard oral argument on a motion to intervene filed by a third party who is claiming entitlement to a portion of any recovery obtained by the plaintiffs. It is unknown when the court will rule on the pending motions. The company reported no further developments regarding the case in its Aug. 11, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Owensboro, Kentucky-based Southern Star Central Corp. -- http://www.southernstarcentralcorp.com/-- operates as a holding company for its regulated pipeline operations and development opportunities. Southern Star Central Gas Pipeline, Inc. is its only operating subsidiary. Southern Star also owns the development rights for Western Frontier, which could be developed in the future. The company owns and operate an approximately 6,000 mile interstate natural gas pipeline and associated storage facilities in the Midwest, serving customers in Missouri, Kansas, Oklahoma, and parts of Colorado, Nebraska, Wyoming, and Texas. SOUTHERN STAR: Court Yet to Allow Intervenor in "Price II" Case --------------------------------------------------------------- The District Court in Stevens County, Kansas, has yet to rule on a motion to intervene filed by a third party who is claiming entitlement to a portion of any recovery obtained by the plaintiffs in Will Price, et al. v. El Paso Natural Gas Co., et al., Case No. 03 C 23 ("Price Litigation II"). The putative class-action suit was filed on May 12, 2003. The named plaintiffs from Price Litigation I have sued the same defendants. The plaintiffs in Price Litigation I sued over 50 defendants, including Southern Star Central Gas Pipeline, Inc. Asserting substantially identical legal and equitable theories, as in Price Litigation I, this petition alleges that the defendants have undermeasured the British thermal units, or BTU, content of, and therefore have underpaid for, the natural gas they have obtained from or measured for the plaintiffs. The plaintiffs seek unspecified actual damages, attorney fees, pre- and post-judgment interest, and reserved the right to plead for punitive damages. On Nov. 10, 2003, an answer to that pleading was filed on behalf of Central. The plaintiffs' motion seeking class certification, along with the plaintiffs' second class certification motion in Price Litigation I, was fully briefed and the court heard oral argument on this motion on April 1, 2005. In January 2006, the court heard oral argument on a motion to intervene filed by a third party who is claiming entitlement to a portion of any recovery obtained by the plaintiffs. It is unknown when the court will rule on the pending motions. The company reported no further developments regarding the case in its Aug. 11, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Owensboro, Kentucky-based Southern Star Central Corp. -- http://www.southernstarcentralcorp.com/-- operates as a holding company for its regulated pipeline operations and development opportunities. Southern Star Central Gas Pipeline, Inc. is its only operating subsidiary. Southern Star also owns the development rights for Western Frontier, which could be developed in the future. The company owns and operate an approximately 6,000 mile interstate natural gas pipeline and associated storage facilities in the Midwest, serving customers in Missouri, Kansas, Oklahoma, and parts of Colorado, Nebraska, Wyoming, and Texas. TELLABS INC: Discovery Still Ongoing in Securities Fraud Suit ------------------------------------------------------------- Discovery continues in Johnson, et al. v. Tellabs Inc, et al., f/k/a/ Makor Issues & Rights, Ltd. v. Tellabs, Inc., Case No. 02- cv-04356 (N.D. Ill.) (St. Eve, J.). The class action complaint was filed on June 18, 2002, against Tellabs, Michael Birck (Chairman of the Board of Tellabs) and Richard Notebaert (former CEO, President and Director of Tellabs), according to the company's Aug. 11, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 3, 2009. Thereafter, eight similar complaints were filed. All nine of these actions were subsequently consolidated, and on Dec. 3, 2002, a consolidated amended class action complaint was filed. The consolidated amended complaint alleged that during the class period, Dec. 11, 2000-June 19, 2001, the defendants violated the federal securities laws by making materially false and misleading statements, including, among other things, allegedly providing revenue forecasts that were false and misleading, misrepresenting demand for our products, and reporting overstated revenue for the fourth quarter 2000 in our financial statements. Further, certain of the individual defendants were alleged to have violated the federal securities laws by trading our securities while allegedly in possession of material, non-public information about us pertaining to these matters. The consolidated amended complaint seeks unspecified restitution, damages and other relief. On Jan. 17, 2003, Tellabs and the other named defendants filed a motion to dismiss the consolidated amended class action complaint in its entirety. On May 19, 2003, the Court granted the company's motion and dismissed all counts of the consolidated amended complaint, while affording plaintiffs an opportunity to replead. On July 11, 2003, plaintiffs filed a second consolidated amended class action complaint against Tellabs, Messrs. Birck and Notebaert, and many, although not all, of the other previously named individual defendants, realleging claims similar to those contained in the previously dismissed consolidated amended class action complaint. The company filed a second motion to dismiss on Aug. 22, 2003, seeking the dismissal with prejudice of all claims alleged in the second consolidated amended class action complaint. On Feb. 19, 2004, the Court issued an order granting that motion and dismissed the action with prejudice. On March 18, 2004, the plaintiffs filed a Notice of Appeal to the United States Federal Court of Appeal for the Seventh Circuit, appealing the dismissal. The appeal was fully briefed and oral argument was heard on Jan. 21, 2005. On Jan. 25, 2006, the Seventh Circuit issued an opinion affirming in part and reversing in part the judgment of the district court, and remanding for further proceedings. On Feb. 8, 2006, defendants filed with the Seventh Circuit a petition for rehearing with suggestion for rehearing en banc. On April 19, 2006, the Seventh Circuit ordered plaintiffs to file an answer to the petition for rehearing, which was filed by the plaintiffs on May 3, 2006. On July 10, 2006, the Seventh Circuit denied the petition for rehearing with a minor modification to its opinion, and remanded the case to the district court. On Sept. 22, 2006, defendants filed a motion in the district court to dismiss some, but not all, of the remaining claims. On Oct. 3, 2006, the defendants filed with the United States Supreme Court a petition for a writ of certiorari seeking to appeal the Seventh Circuit's decision. On Jan. 5, 2007, the defendants' petition was granted. The United States Supreme Court heard oral arguments on March 28, 2007. On June 21, 2007, the United States Supreme Court vacated the Seventh Circuit's judgment and remanded the case for further proceedings. On Nov. 1, 2007, the Seventh Circuit heard oral arguments for the remanded case. On Jan. 17, 2008, the Seventh Circuit issued an opinion adhering to its earlier opinion reversing in part the judgment of the district court, and remanded the case to the district court for further proceedings. On Feb. 24, 2009, the district court granted plaintiffs' motion for class certification. The case is now proceeding in the district court and discovery is ongoing. Representing the plaintiffs is: Richard H. Weiss, Esq. MILBERG WEISS LLP One Pennsylvania Plaza, 49th Floor New York, NY 10119-0165 Phone: 212-946-9304 Fax: 212-273-4401 E-mail: rweiss@milbergweiss.com Representing the defendants is: David F. Graham, Esq. SIDLEY AUSTIN LLP One South Dearborn Street Chicago, IL 60603 Phone: 312-853-7000 E-mail: dgraham@sidley.com TELLABS INC: "Brieger" Plaintiffs File Notice of Appeal ------------------------------------------------------- Plaintiffs have filed a notice of appeal from the judgment entered in Brieger v. Tellabs, Inc., Case No. 06-cv-_____ (N.D. Ill.), in favor of Tellabs, Inc., according to the company's Aug. 11, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 3, 2009. The class action complaint was filed on April 5, 2006, against the company, Michael Birck, Richard Notebaert and current or former Tellabs employees who, during the alleged class period of Dec. 11, 2000, to July 1, 2003, participated on the Tellabs Investment and Administrative Committees of the Tellabs, Inc. Profit Sharing and Savings Plan. Thereafter, two similar complaints were filed in the United States District Court of the Northern District of Illinois. The complaints allege that during the alleged class period, the defendants allegedly breached their fiduciary duties under the Employee Retirement Income Security Act by, among other things, continuing to offer Tellabs common stock as a Plan investment option when it was imprudent to do so and allegedly misrepresenting and failing to disclose material information necessary for Plan participants to make informed decisions concerning the Plan. Further, certain of the defendants allegedly failed to monitor the fiduciary activities of the fiduciaries they appointed and certain of the defendants allegedly breached their duty of loyalty by trading Tellabs stock, while taking no protective action on behalf of Plan participants. The complaints seek unspecified restitution, damages and other relief. On June 28, 2006, the Court consolidated all three actions and on Aug. 14, 2006, plaintiffs filed a consolidated class action complaint. On Sept. 15, 2006, defendants filed a Motion to Dismiss, or in the Alternative, for Summary Judgment seeking the dismissal with prejudice of all claims in the consolidated amended class action complaint. On Feb. 13, 2007, the court denied defendants' motion and on April 17, 2007, denied Tellabs' motion for leave to certify an issue for interlocutory appeal to the United States Federal Court of Appeal for the Seventh Circuit. Plaintiffs moved to certify a class, discovery was conducted to determine the propriety of class certification, and Tellabs opposed class certification. On Sept. 20, 2007, the court granted plaintiff's motion to certify a class. The trial started on April 13, 2009, and ended on May 8, 2009. On June 1, 2009, the court entered judgment in favor of Tellabs on all claims. The Plaintiffs filed a notice of appeal on July 1, 2009. TISHMAN SPEYER: N.Y. Ct. of App. Rules in Tenants' Favor -------------------------------------------------------- FindLaw reports that tenants in two large rent-regulated apartment complexes in Manhattan won a legal victory last week from New York's highest court. Upholding a 2007 appellate court ruling that landlords who receive a special J-51 tax abatement forfeit the right to further remove apartments from rent regulation by luxury decontrol proceedings, the Court of Appeals declined to give apartment owners a legal "twofer." A copy of the 28-page decision in Roberts, et al. v. Tishman Speyer Properties, L.P., et al., is available at from FindLaw at http://is.gd/4yoHp The decision indicates that the Plaintiffs believe rent overcharges total $215 million. USANA HEALTH: Continues to Defend "Chirco" Suit in Nevada Court --------------------------------------------------------------- Usana Health Sciences Inc. continues to defend a purported class action lawsuit filed with the State District Court in Clark County, Nevada, according to the company's Aug. 11, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 4, 2009. In April 2009, Joseph Chirco, a former USANA Associate filed a purported class action lawsuit and named the company and certain of its present and former officers and directors, as well as other individuals, as defendants. The proposed class consists of distributors who were Nevada residents at any time since 1995. The complaint, which is essentially a copy of a complaint from a purported distributor class action lawsuit filed against the company in California state court in 2007, alleges a number of purported material misrepresentations to the market in violation of state pyramid law, deceptive business practices, and business fraud law. The complaint seeks damages, general injunctive relief, pre- judgment interest, costs, attorney's fees, and other further relief deemed appropriate by the court. The company believes the claims in this complaint are distorted, not actionable under applicable law, and without merit. On June 2009, the company filed its answer to the complaint, which contained a general denial of the allegations in the complaint and set forth its affirmative defenses. Based in Salt Lake City, Utah, USANA Health Sciences, Inc. -- http://www.usanahealthsciences.com/-- develops and manufactures science-based nutritional and personal care products. The company distributes and sells its products internationally through a network marketing system, which is a form of direct selling. Its international markets include Canada, Mexico, Australia, New Zealand, Singapore, Malaysia, Hong Kong, Taiwan, Japan, and South Korea, and direct sales from the United States to customers in the United Kingdom and the Netherlands. The company distributes and sells its products through a network marketing system, a form of direct selling, using independent distributors that it refers to as Associates. It also sells its products directly to Preferred Customers who purchase the Company's products for personal use and are not permitted to resell or distribute the products. ********* 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. Gracele D. Canilao, Leah Felisilda 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 * * *